U.S. Supreme Court curbs federal power to regulate greenhouse gases, in blow to Biden

Editor’s note: This story has been updated to include reaction from the Biden administration.

The U.S. Supreme Court ruled Thursday the Environmental Protection Agency does not have the authority to regulate greenhouse gases as pollutants, siding with a group of Republican attorneys general and coal companies in a major blow to the executive branch’s power to curb climate change.

The opinion was a victory for the Republican-led states that undertook the challenge, West Virginia and 18 others — including Alaska, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska and Ohio – and limits President Joe Biden’s ability to pursue his climate goals. 

In the 6-3 decision, the court’s conservatives ruled that Congress only empowered the EPA to narrowly regulate the emissions of individual power plants, not establish sweeping industry-wide caps on emissions from coal and gas power. 

A 2015 Obama administration rule — which is no longer in effect — exceeded the agency’s authority, Chief Justice John Roberts wrote for the majority.

The agency used a little known provision of the Clean Air Act, known as Section 111, to “discover” the power to broadly regulate coal- and gas-fired power plants, Roberts wrote.

“The Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself,” he said.

Kagan, liberals dissent

In a dissent written by Justice Elena Kagan, the court’s three liberals said the decision strips the executive branch agency charged with environmental regulation of its power to respond to the most urgent environmental issue the world faces. Executive branch agencies can use broad authorizing language to address significant issues, the liberals said. 

The majority’s decision rested on the sole claim that the EPA requiring a shift from coal and gas power to renewable sources of energy was too large a policy change to be authorized by general language in the law, Kagan wrote.

“But that is wrong,” she wrote. “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.” 

Congress delegates the power to expert agencies to address issues as they arise, which is what Congress did in the broad provision of the Clean Air Act the EPA used to establish the Clean Power Plan, she said.

“The majority today overrides that legislative choice,” the dissent reads. “In so doing, it deprives EPA of the power needed — and the power granted — to curb the emission of greenhouse gases.” 

Biden pledges action 

In a statement, Biden slammed the decision and said he directed his legal team to work with the Justice Department and other agencies to find other ways to reduce climate change.

The ruling was “another devastating decision that aims to take our country backwards,” he said.

“​​I will take action,” Biden said. “My Administration will continue using lawful executive authority, including the EPA’s legally-upheld authorities, to keep our air clean, protect public health, and tackle the climate crisis.”

The administration will work with states and local governments and pursue congressional action to move toward clean energy, he added.

Landmark court term for conservatives

The decision, issued on the last day of the court’s term, capped a landmark term for its new conservative majority that issued major rulings revoking a constitutional right to abortion, limiting states’ power to regulate guns and restricting federal COVID-19 regulations.

Senate Majority Leader Chuck Schumer blasted the EPA ruling as part of an “extremist” run of decisions that have hurt the court’s standing with the public. 

“This MAGA, regressive, extremist Supreme Court is intent on setting America back decades, if not centuries,” Schumer, a New York Democrat, said in a written statement. “The Republican-appointed majority of the MAGA Court is pushing the country back to a time when robber barons and corporate elites have complete power and average citizens have no say.”

Republican Senate Leader Mitch McConnell, who was as instrumental as anyone in establishing the court’s 6-3 conservative advantage, praised the decision for returning policy-making power to Congress. 

​​The ruling “pushes back against the overbearing administrative state, which Democrats have expanded dramatically in recent years,” McConnell, of Kentucky, said in a statement. 

“The Constitution states clearly that the lawmaking process lies with the people and their elected representatives, not with opaque federal agencies. I am glad the Supreme Court affirmed this fact and hope other overeager bureaucrats take notice.”

Other leaders in Congress commented on the ruling’s policy impacts, with Republicans largely in favor and Democrats opposed.

“The Supreme Court’s decision today rightfully reins in unreasonable and unlawful attempts to shut down American power plants and energy production,” Wyoming’s John Barrasso, the No. 3 Senate Republican and ranking member of the Senate Energy Committee, said.

“For years, Democrats have used overreaching Environmental Protection Agency (EPA) regulations to side-step Congress and the American people to enact their extreme climate agenda.”

House Energy and Commerce Committee Chairman Frank Pallone called the ruling “an alarming display of hubris.”

“No one is safer or freer for this decision,” the New Jersey Democrat said. “All the Court has achieved today is putting Americans in the crosshairs of dangerous air pollution and a growing climate crisis which threatens us all.”

A years-long fight

The suit, which Nebraska joined, goes back to 2015, when West Virginia and others challenged the Obama administration’s Clean Power Plan, a rule that established emission guidelines for states to limit carbon dioxide emissions from power plants.

The EPA under President Donald Trump rescinded the rule in 2019 and replaced it with the less stringent Affordable Clean Energy rule. A federal appeals court in Washington, D.C., struck that rule down last year, saying the EPA was required to at least consider more aggressive alternatives.

Thursday’s decision hinged on the “major questions doctrine,” a legal theory that Congress must authorize the executive branch to regulate broad issues of major national significance.

Nearly 200 Democratic members of Congress submitted a brief in the case that said the Clean Air Act clearly did give the EPA power to regulate emissions.

Correction: The name of Emily Schilling, a lawyer who heads Holland & Hart’s environmental resources practice group, has been corrected.