The court’s use of the “major questions” doctrine is likely to spur challenges to climate and energy regulations
CLIMATEWIRE | The Supreme Court ruling last week that clipped EPA’s authority to regulate global warming pollution will likely open the door to a flood of challenges claiming government agencies are overstepping their mission to tackle climate change.
Ruhl likened the situation to a Goldilocks scenario — the court in 2007 found that EPA wasn’t doing enough to regulate greenhouse gases, only to say last week in West Virginia v. EPA that it was trying to do too much. The decision invalidated the 2015 Clean Power Plan, which never went into effect, and will put some limits on how the Biden administration and future presidents can write new rules for existing power plants .
Observers also had mixed views on how the ruling would affect proposed changes to company disclosure statements about climate-related risks at the SEC, or FERC’s proposal for how to assess the emissions of individual interstate natural gas projects before they are approved for construction. The opinion “uses the language of protecting congressional power to transfer power to the Supreme Court,” said Jennifer Danis, a senior attorney at the Niskanen Center.
“Agencies at this point just need to go big,” he said. “In some ways, conservatives on the court want this to have a chilling effect on the agencies. And the worst thing they can do is let that happen.” Texas Attorney General Ken Paxton, who was among the Republican attorneys general taking aim at the Biden vehicle regulations, welcomed last week’s court decision, saying it found that the Clean Air Act “does not vest the EPA with industry-transforming, state-displacing power.” EPA, he added, “cannot restructure full industries or upend traditional state and federal environmental regulatory roles.
Kirti Datla, director of strategic legal advocacy at Earthjustice, said challengers to the auto emissions standards raised the question of whether it was a violation of the major questions doctrine — even before the court embraced the theory in the West Virginia case. “This proposal steps outside our statutory limits by using the disclosure framework to achieve objectives that are not ours to pursue and by pursuing those objectives by means of disclosure mandates that may not comport with First Amendment limitations on compelled speech,” she said.“It’s almost becoming a self-fulfilling prophecy where any time an agency does something — critics, the industry is going to complain a lot, and does that in turn make it a major question?” Goodwin said.
So requiring climate disclosures is not unprecedented for the commission, said BU’s Condon, who joined in the NYU comments. FERC The energy commission’s efforts to account for the climate risks of new interstate natural gas projects approved by federal regulators may also be targets of legal challenges under the justices’ interpretation of the major questions doctrine .
FERC’s natural gas policy statement details how it will assess likely greenhouse gas emissions from new projects to determine if the risks posed by the project potentially outweigh the benefits to consumers. “It will have enormous implications for the lives of everyone in this country, given the inseparability of energy security from economic security,” he continued.
Environmental considerations for projects have also been a long-standing part of Congress’ mandate to balance the risks and benefits to FERC and its precursor, the Federal Power Commission, dating back to the mid-20th century, said Romany Webb, a senior fellow at Columbia University’s Sabin Center for Climate Change Law.
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