Did the Inflation Reduction Act, which Congress recently managed to pass by party-line vote, quietly save the administrative state? This week, numerous commentators—including members of Congress—suggested that cunning Hill staffers had managed to sneak in language upending the Supreme Court’s recent decision in West Virginia v. EPA, which limited the ways the Environmental Protection Agency can regulate greenhouse gas emissions under the Clean Air Act. Dark Brandon had struck again. Republicans were furious.
Sadly, as several legal scholars point out, the change isn’t likely to change much.
The IRA adds repeated language defining greenhouse gases—including carbon dioxide and methane—as air pollutants in the Clean Air Act so that the IRA can fund certain incentives to cut them. The EPA has had the authority to regulate greenhouse gases under the Clean Air Act since 2007, as was affirmed in the Supreme Court’s 2007 decision in Massachusetts v. EPA. While some thought the now extra-conservative court might negate that authority in West Virginia v. EPA, the court stopped short of that line, instead affirming the EPA’s ability to regulate greenhouse gases as air pollutants but disputing the particular way the Obama administration proposed to go about it in the Clean Power Plan. In questioning the EPA’s ability to interpret the law, however—entrusting that power to the court—the ruling opened the door to sweeping challenges to federal agencies’ ability to do new, big things.
It’s not “trivial” to inscribe the EPA’s authority to regulate carbon and methane in legislation as the IRA does, says environmental lawyer Sean Hecht, co-executive director of UCLA’s Emmett Institute on Climate Change and the Environment. But it doesn’t do much to change the nature of the threat the West Virginia v. EPA ruling poses to environmental rules and to the administrative state in general.
The Supreme Court’s decisions in recent years have left substantial ambiguity about when and how the executive branch can and cannot regulate greenhouse gases. In 2014, the majority opinion in United Air Regulatory Group v. EPA declared that even if greenhouse gases are defined as air pollutants for the purposes of the Clean Air Act broadly or in particular sections, they might not be in other sections. “This new law doesn’t really change that,” Hecht says, “and underscores the problem: There might be some sections of the [Clean Air Act] that call greenhouse gases air pollutants for the purposes of that section and other sections that are silent about it.” The IRA designates greenhouse gases as air pollutants for certain purposes but doesn’t outline other ways that the Clean Air Act can regulate emissions. Under section 135 of the Clean Air Act, for instance, it allocates $87 million to “ensure that reductions in greenhouse gas emissions are achieved through use of existing authorities.”
“What’s really the issue is what sort of regulations other provisions in the [Clean Air Act] authorize. That was the issue in West Virginia v. EPA, and I don’t see anything in the IRA that affects that,” explains Jonathan Adler, director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. “I don’t think these provisions create much protection for EPA regulations or expand the EPA’s authority.”
Hecht adds that West Virginia v. EPA “wasn’t really interpreting the statute at all. They’re applying this entirely different analysis, which basically says, whatever the statute says, if we the Supreme Court don’t think Congress meant to regulate this type of thing in this type of way, we’re going to say that this statute doesn’t cover it.” That analysis is something known as major questions doctrine, the relatively novel concept that it’s the court’s job—not federal agencies’— to interpret congressional statutes when it comes to questions of “vast economic or political significance.” As Justice Elena Kagan pointed out in her dissent, the Supreme Court had not previously argued this and in fact had “never even used the term ‘major questions doctrine’ before.”
Essentially, the West Virginia v. EPA decision invited challenges to regulatory authority based on major questions doctrine. Those challenges can still happen, both to EPA regulations under the Clean Air Act and climate rules written by other agencies. Just this week, a complaint from Republican attorneys general argued that a proposed rule from the Securities and Exchange Commission—to require that companies disclose their emissions—was a violation of major questions doctrine, likely setting the scene for a legal battle.
Clean Air Act amendments included in the IRA may provide some disincentive against attempts to overturn Massachusetts v. EPA. But the court’s conservative majority and its allies in the right-wing legal movement might be keen to do that anyway—whatever existing statutes say—or undermine emission-cutting regulations through other means. “The idea that there’s some magic bullet that is going to prevent the Supreme Court from engaging in that kind of analysis just doesn’t seem right to me,” Hecht said. “The magic bullet would be if you actually had a law passed by Congress that made it precisely clear what Congress wanted to do. But I’m not holding my breath for that.”
That’s not to say that the IRA isn’t helpful. Its bread and butter is in making clean energy cheaper, which may change the calculus around how new regulations are crafted and how ambitious they can be. Making emission-reducing technologies more viable and affordable, that is, makes it easier for polluters to start using them and to switch off of higher-carbon alternatives, widening the projected benefits of new rules and creating a more favorable cost-benefit analysis, which has been a legal requirement for new regulations since the Reagan era.
“Anything that helps accelerate development, deployment, or commercialization of pollution control technology,” Hecht said, “makes it easier for EPA to justify selecting those technologies as the standard and harder for challengers to argue coherently that EPA is overstepping its authority.” That could in turn provide a buffer against the kinds of challenges the court appeared to welcome in its ruling on West Virginia v. EPA. Unfortunately that decision still stands. At least for now, a simple majority in Congress has not been able to override a handful of unelected judges.