When the U.S. Supreme Court issued its ruling in West Virginia v. EPA, a case involving regulatory overreach by a federal agency, you would have thought the sky was falling.
Rep. Alexandria Ocasio-Cortez, D-New York, declared the ruling “catastrophic” and called for an overhaul of Senate rules to do away with the filibuster so Democrats can pass legislation on the slimmest possible majority vote.
Sen. Ed Markey, D-Massachusetts, thundered on Twitter, “For our planet, for our rights, and for our very future, expand the Supreme Court.” He later issued a statement denouncing what he called “a captured, illegitimate, and far right Supreme Court majority.”
Princeton University Professor of Geosciences and International Affairs Michael Oppenheimer told PBS, “this decision is going to seriously slow U.S. progress” toward “avoiding a dangerous climate change,” which he then went on to define: “What I mean by dangerous is more and much more of the kinds of weather we have already started to see, record heat, record droughts, sea level rise flooding coastal areas, and really intense rainstorms, in some cases drowning people in their own bedrooms.”
If a sufficient number of elected representatives believed that the situation was so dire that people are about to drown in their bedrooms because of the way we generate electricity in America, it would be easy for Congress to give the Environmental Protection Agency the specific authority to ban electricity generation from coal and natural gas and to mandate the use of solar and wind energy.
Clearly, a sufficient number of lawmakers remain unconvinced that this is a good idea.
The Supreme Court ruled that the EPA exceeded its authority with its Clean Power Plan rule in 2015. The agency claimed that Section 111 of the Clean Air Act, which provides authority to order a facility to adopt a cleaner technology, also authorized the agency to order the shut-down of coal-fired and gas-fired power plants nationwide.
Chief Justice John Roberts, writing for the majority, said this was simply not something Congress had authorized. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he wrote. Roberts pointed to the EPA’s own report stating that the rule would cost billions of dollars, raise energy costs, and wipe out tens of thousands of jobs.
Professor Oppenheimer complained that Congress is “deadlocked by polarization,” which led to the Obama administration “developing regulations” to prevent people from drowning in their bedrooms.
But if Congress cannot be convinced to take action, that is itself a decision. There is no authority in the Constitution for courts, agencies or executive branch officials to take it upon themselves to overhaul the entire energy sector of the United States through orders, mandates and regulations.
President Biden issued a statement calling the ruling “another devastating decision” and vowed that he would “not relent in using my lawful authorities to protect public health and tackle the climate crisis.”
The operative word is “lawful.” The government can’t go rogue every time there’s a change of majority control and start imposing far-reaching and costly regulations without legal authorization.
Energy policy is both important and complicated. The decisions that drive it should be made lawfully by elected representatives who arrive at a reasonable consensus through the legislative process
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