A series of decisions over the past two years by the Supreme Court has significantly affected the EPA’s authority to limit air and water pollution, regulate the use of toxic chemicals and reduce global-warming greenhouse gases.
With that term, the court’s conservative supermajority has issued several rulings that strip away the power of many federal agencies.
But the environmental agency has come under particular fire, the result of a series of lawsuits brought since 2022 by conservative activists who say EPA regulations have raised costs for industries ranging from electric utilities to construction. These arguments resonate with judges who are skeptical of government regulation.
On Friday, the court ended the use of what is known as the Chevron doctrine, a cornerstone of administrative law for 40 years that said courts should leave it up to government agencies to interpret vague laws. This decision threatens the authority of many federal agencies to regulate the environment as well as health care, workplace safety, telecommunications, the financial sector and more.
But more notable have been several court decisions to step in to stop environmental regulations before they are decided by lower courts or even before they are implemented by the executive branch.
On Thursday, the court said the EPA could not limit smog pollution that blows across state lines under a measure known as the “good neighbor rule.” In that case, the court took the surprising step of weighing in while the case was pending in the United States Court of Appeals for the District of Columbia Circuit.
The court also acted unusually preemptively last year when it struck down a proposed EPA rule, known as Waters of the United States, designed to protect millions of acres of wetlands from pollution, acting before the regulation was even finalized.
Similarly, in a 2022 challenge to an EPA climate proposal known as the Clean Power Plan, the court sharply limited the agency’s ability to regulate greenhouse gas emissions from power plants, even though that rule had not yet been put into effect. strength.
This type of intervention has few precedents. Usually, the Supreme Court is the last place to hear a case after arguments have been made and opinions issued by lower courts.
“This court has shown an interest in legislating in this area and has no patience to wait for cases to come to court first,” said Kevin Minoli, an attorney who worked in the EPA’s office of general counsel since Clinton. through the Trump administrations. “They were aggressive when they ruled. It’s like we’re going to tell you the answer before you even ask the question.”
Collectively, these decisions now jeopardize not only many existing environmental rules, but may prevent future administrations from drafting new ones, experts say.
“These are among the worst environmental law decisions the Supreme Court will ever issue,” said Ian Fein, a senior attorney at the Natural Resources Defense Council, an advocacy group. “They all sharply reduce the federal government’s ability to enforce laws that protect us from polluters.”
The trail of environmental cases isn’t over: The court agreed to hear a case next term that could limit the reach of the National Environmental Policy Act, the 1970 law that requires federal agencies to analyze whether their proposed projects have environmental consequences. Businesses and industries have long complained that assessments can take years, inflate costs and be used by community groups to block projects.
For a coalition of industries, conservative advocacy groups and Republican attorneys general and their campaign donors, the recent rulings are a victory in a years-long strategy to use the court system to influence environmental policy.
Many of the petitioners in the cases overlap, including Republican attorneys general from at least 18 states, the National Association of Mines, the American Petroleum Institute and the U.S. Chamber of Commerce.
The lead plaintiff in last year’s wetlands protection case, the Pacific Legal Foundation, is part of a network of conservative research organizations funded by billionaire Charles Koch, who is chairman of the petrochemical company Koch Industries and a champion of anti-regulatory causes.
“You see a lot more coordination now than in the past, coalitions of states and trade groups to change administrative law,” said Damien M. Schiff, an attorney with the Pacific Legal Foundation. “The trade groups, the chamber, the PLF, we very consciously take cases that we hope will win in a way that sets a precedent. The strategy, the tactics are the same. It is coordinated internally.”
The Supreme Court has “shown a greater willingness to exercise its authority earlier in the litigation process,” Mr. Schiff said.
Plaintiffs are also strategizing for the future.
President Biden has pledged that the United States will cut carbon dioxide pollution in half by 2030 and eliminate it by 2050, which scientists say all major economies must do if the world is to avoid the deadliest and most costly effects of climate change. This year, the EPA rushed to finalize new rules to reduce pollution from cars, trucks, power plants, and methane leaks from oil and gas wells.
If he wins a second term, Mr. Biden wants to cut emissions from steel, cement and other heavy industries that have never had to cut their global warming emissions.
But a string of recent Supreme Court losses could make it harder for the EPA to follow through on those plans.
“There’s been a steady erosion of environmental law,” said Patrick Parenteau, an environmental law expert at Vermont Law School. “These decisions mean that Biden, if he gets a second term, won’t be able to do much else about the environment, particularly the climate.”
Christine Todd Whitman, a Republican and former New Jersey governor who served as EPA administrator during the George W. Bush administration, said environmental regulations can sometimes go too far and have had to be tempered by the courts. But he said he sees the Supreme Court’s recent rulings as a troubling new precedent.
“What this activist conservative court is doing now, which really upsets me, is trying to implement a political agenda,” Ms. Whitman said. “They’re looking for an opportunity to make a statement. And it bypasses and undermines the agencies. It’s like they’re taking the attitude that all regulations are bad and we’re going to stop them all before they go too far.”
This will have detrimental consequences, he said.
“If you don’t have clean air to breathe and water to drink, it’s going to cost a lot,” Ms Whitman said. “This is putting a lot of people’s lives at risk.”
For example, the court’s decision to limit the EPA’s authority to regulate wetlands and so-called ephemeral streams means that about half of the nation’s wetlands could be polluted or drained without federal sanction, potentially harming thousands of plant and animal species. What’s more, new research has shown that the court’s decision also makes major US river basins vulnerable to pollution.
Carrie Severino, president of the Judicial Crisis Network, said in a statement that the legal decisions properly shift power over decisions with a large financial impact from the executive branch to the legislature.
“For too long, reckless bureaucrats in D.C. have imposed destructive regulations that hurt farmers, fishermen and countless small business owners already struggling to survive in our global economy, and the Supreme Court has an opportunity to restore accountability to this procedure. putting power back in the hands of Congress where it belongs,” he said.
On that last point, environmentalists and conservatives say they agree: If the federal government wants to protect the environment, Congress should update existing laws and pass new legislation.
The nation’s foundational environmental laws, the Clean Air Act and the Clean Water Act, were both written more than 50 years ago, before the effects of climate change and a global economy reshaped the environmental and economic landscape. .
Since then, Congress has passed a major piece of legislation to address climate change, the Inflation Reduction Act of 2022. It includes more than $370 billion in incentives for clean energy technologies, including wind and solar power and electric vehicles. Climate experts call it a strong first step in reducing the country’s emissions, but say much more is needed to be completely phased out over the next 25 years.
“Agencies for more than 30 years have needed to use old, existing laws to deal with new environmental problems,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “And this new court now makes it extremely difficult. Unless Congress is extremely specific, the agencies cannot act. But because Congress is largely deadlocked, that in turn freezes what they can do.”
