Major Questions on Climate & the EnvironmentImplicating the Supreme Court and the Nation

What is the United States Supreme Court up to, with respect to the climate and environmental crises?

Is its conservative majority hell-bent on inserting itself as the nation’s chief environmental regulator, displacing the Environmental Protection Agency – indeed, stripping EPA of authority that Congress plainly sought to confer? Or is the current majority merely, in outlier cases, seeking to tamp down on Agency overreach, preventing EPA from arrogating to itself authority Congress never intended?

This set of questions is raised squarely by two recent high-court decisions interpreting two bedrock federal environmental statutes.

In the first, West Virginia v EPA, decided just eleven months ago, the Court considered whether a promulgated, though never implemented, Obama-era rule – EPA’s so-called “Clean Power Plan” – exceeded the Agency’s authority to control greenhouse gas (GHG) pollution from existing power plants. In that case, six justices – Roberts, Alito, Kavanaugh, Thomas, Gorsuch, and Barrett – determined that Congress had not conferred clear authority on the Agency to decide which power plants may continue to operate across the US.

As authority for its rulemaking, EPA had cited to the Clean Air Act’s command that it adopt standards of performances for stationary sources amounting to the “best system of emissions limitation.” Indeed, over several decades, the Agency had set emissions performance standards for the electricity-generating sector with an eye towards ensuring that existing power plants could comply through achievable, if at times costly, changes to plant-by-plant operations. These became known as “inside the fence” modifications.

What is the Supreme Court up to with respect to climate?

But under EPA’s Clean Power Plan, again according to the West Virginia majority, EPA “by design,” had set limits so stringent that “there [were] no particular controls a coal plant operator [could have] install[ed] and operate[d] to attain” them. The Clean Power Plan, thus, was a “generation-shifting” rule, one that sought to shift “electricity production from higher-emitting to lower-emitting producers.” Moreover, the anticipated impact on the power sector was considerable, according to EPA’s own 2015 modeling.

With respect to all of this, the DC Circuit Court of Appeals earlier had found nothing unusual nor untoward in EPA’s approach.¹ Nonetheless, upon deciding the case, the Supreme Court majority characterized EPA’s Plan as a nearly malevolent “assertion of extravagant statutory power . . .over American industry,” one that raised major questions”² meriting judicial skepticism, particularly where EPA relied on what the Court tendentiously referred to as “an unheralded power” discovered in “a long-extant statute.”

In the second such recent case, Sackett v. EPA,³ decided just last week, all nine Supreme Court justices determined that EPA had erred in ordering a couple (“Sackett and his wife”)⁴ to restore a wetland on their Idaho property.

EPA’s action was based on its finding that the Sackett property, in combination with a neighboring wetland, significantly impacted the ecology of nearby Priest Lake, a waterbody clearly enjoying the protection of the Clean Water Act. But the justices determined readily that such a “significant impact” determination did not suffice to ground EPA’s enforcement.

Going further, however, five of the Justices also deemed it necessary to “clarify” the meaning of that statute’s important but undefined phrase “waters of the United States” (hereafter, “federal waters). This is significant because federal Clean Water Act protections apply only to federal waters. Other waters will enjoy only state or local protection, or none at all.

To be precise, the Clean Water Act treats wetlands that are “adjacent” to lakes, rivers, streams and oceans as protected federal waters. But in its opinion, the Court majority announced that wetlands henceforth should receive Clean Water Act protection only where they have a “continuous surface connection” with federal waters.

To be charitable, the majority’s reasoning is twisted. As Justice Kavanaugh, in his concurrence, observed, the majority’s determination “narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”⁵

To be charitable, the majority’s reasoning is twisted.

Importantly, as I indicated above, the Sackett majority’s decision to strip Clean Water Act protections from numerous wetlands was not necessary to the Court’s judgment. Indeed, the Court unanimously rejected EPA’s enforcement action, including EPA’s most recent argument that the Sacketts’ wetland retained a “significant nexus” to a federal waterbody. So all nine justices rejected the Agency’s newly promulgated definition for “Waters of the US,” as published recently in the Federal Register.⁶ In particular, five of the Justices determined EPA’s significant-nexus test to be “inconsistent with the text and structure of the CWA,” and the four concurring justices (Kavanaugh, Sotomayor, Kagan, and Jackson) did not disagree.

But that four did dispute the need for and legitimacy of the majority’s own new “continuous surface connection” test. Indeed, they found the majority’s test itself to be “inconsistent with the text and structure of the statute,” and inconsistent, as well, with the Clean Water Act’s basic purpose “to restore and maintain the chemical, physical, and biological integrity of the Nation’s water.”

Moreover, as Justice Kagan reminded readers, the Court itself determined nearly 40 years ago that “wetlands serve to filter and purify water draining into adjacent bodies of water.” That service may be equally important where a wetland has a subterranean or intermittent connection to federal waters. The majority’s revision of the Act thus leaves millions of acres of wetlands with little or no protection, a “disastrous outcome for wetlands, which have become absolutely vital for biodiversity preservation and flood control,” according to Vermont Law School’s Pat Parenteau.”⁷ Indeed, the Court’s revisionism is so egregious and disruptive that one is tempted to ask why this type of judicial assault on the integrity of our nation’s waters failed to raise “major questions” for the Court’s majority, prompting skepticism, particularly where its own juridical legerdemain amounts to a novel and highly strained interpretation of a long-extant statute.

That the Court’s revisionism was wholly unnecessary to its judgment adds insult to injury.

Why didn’t the Court’s own assault on the integrity of federal waters raise “major questions” for its majority, particularly as it is based on a novel and highly strained interpretation of a long-extant statute?

The Sachett majority’s reasoning already has been widely and sharply criticized as yet one more instance not of EPA overreach, but of Supreme Court overreach. For instance, see “Opinion terrible news if you care about clean water”, “A gift to polluting industries”, and “Many valuable ecosystems (now) at risk”.

But I think the most trenchant criticism of these cases arises from within, namely from Justice Elena Kagan. For instance, in her dissent of the conservative majority’s West Virginia decision, the Justice began, and then ended, as follows:

Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.”
. . .
The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”⁸

Similarly, in Sackett, Justice Kagan concluded, “sadly,” that:

[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” . . . Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.”⁹

Does Justice Kagan, then, neatly answer the questions heading this column?

With respect to the Sackett decision, concerning the scope of protection afforded our nation’s wetlands under the Clean Water Act, I am afraid Justice Kagan is correct. The conservative majority’s revision of key statutory provisions seems to me blatant and irreparable—absent Congressional action to “restore and maintain” our wetlands’ protected place under federal law.¹⁰

But with respect to the conservative majority’s decision in West Virginia, I am not so sure. To be clear, I agree with Justice Kagan that the Court there erred in its cramped construal of Clean Air Act Section 111(d) and by its employment and expansion of the Court’s “major questions doctrine” and “plain statement rule” jurisprudence.

But Justice Kagan may not have been correct or complete in stating that the majority “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.” Why so? Because, in my view, the Clean Power Plan was not the final word on how such emissions may be restricted under the Clean Air Act. Neither, for that matter, did the Clean Air Act provide the only or, for that matter, the necessarily best source of statutory authority to ground future effective EPA action with respect to GHG emissions from power plants or other sources.

We will have occasion soon to return to some of these major questions.

Footnotes:

1
The DC Circuit Court determined, indeed, that “the Clean Air Act expressly confers regulatory authority on the EPA to set standards for reducing greenhouse gas emissions from fossil-fuel-fired power plants nationwide. Congress knew both the scope and importance of what it was doing. And it cabined the EPA’s authority with concrete and judicially enforceable statutory limitations. The major questions doctrine is meant to discern, not override, such statutory judgments.” Am. Lung Ass’n v. EPA, 985 F.3d 914, 964 (2021).
2
West Virginia v. EPA, 142 S. Ct. 2587, 2610 (June 30, 2022).
3
Sackett v. EPA, No. 21-454, 2023 U.S. LEXIS 2202 (May 25, 2023).
4
The fuller case name heading the Court’s decision is “Sackett et ux. v. Environmental Protection Agency et al.” Note the difference between “et al.,” Latin for “and others,” and “et ux.” I needed to look up that last term: “et ux.” is Latin for “and wife.” Should the law not even attempt to avoid such anachronism? I mean, “Sackett and wife”? Use of this archaic legalism seems especially bizarre where, as here, the Court in its main opinion names names (“Michael and Chantell Sackett have spent well over a decade navigating the CWA, and their voyage has been bumpy and costly”) and the Court itself recognizes that each spouse retains relevant legal agency (“[t]he Sacketts filed suit under the Administrative Procedure Act. . . alleging that the EPA lacked jurisdiction because any wetlands on their property were not “waters of the United States.”). Accordingly, “Sacketts v EPA” would have worked. But, I digress.
5
The Sackett court also argued that Congress must employ “exceedingly clear language” whenever it seeks to alter the balance of power between the federal government and private property ownership, particularly as the “[r]egulation of land and water use lies at the core of traditional state [and not federal] authority.”
6
See 88 Fed. Reg. 3004 (January 18, 2023) (defining “Waters of the United States”).
7
See Adam Liptak, Supreme Court Limits E.P.A.’s Power to Address Water Pollution, NY Times (May 25, 2023).
8
West Virginia v. EPA, 142 S. Ct. 2587, 2644 (2022).
9
Sackett v. EPA, No. 21-454, 2023 U.S. LEXIS 2202, at *88 (May 25, 2023)
10
See, for instance, Jim Murphy, The Supreme Court Is Crippling Environmental Protections. Where Is Congress? New York Times (May 29, 2023).