A series of Supreme Court decisions are hitting environmental regulations hard

A series of Supreme Court rulings in the past two years have strengthened the Environmental Protection Agency’s authority to limit air and water pollution, regulate the use of toxic chemicals and reduce planet-warming greenhouse gas emissions. , significantly limited.

This term, the Court’s conservative supermajority has issued several rulings that undermine the power of many federal agencies.

But the environmental agency is under fire, following a series of cases filed since 2022 by conservative activists who say EPA regulations have driven up costs for industries ranging from electric utilities to residential construction. These arguments have resonated among judges skeptical of government regulation.

On Friday, the court ended the use of what’s known as the Chevron Doctrine, a cornerstone of administrative law for 40 years that held that courts must defer to government agencies to interpret unclear laws. The 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 are the court’s several decisions to intervene to halt environmental regulations before they were established by lower courts or even before they were implemented by the executive branch.

On Thursday, the court said the EPA could not limit pollution from smokestacks that blow across state lines under a measure known as the “good neighbor rule.” In that case, the court took the surprising step of intervening while the lawsuit was still pending in the U.S. Court of Appeals for the District of Columbia Circuit.

Last year, the court also acted in an unusually preliminary manner when it rejected a proposed EPA rule known as Waters of the United States. These regulations were intended to protect millions of acres of wetlands from pollution. The court acted even before the regulations were finalized.

Similarly, in a 2022 challenge to an EPA climate proposal known as the Clean Power Plan, the court limited the agency’s ability to regulate greenhouse gas emissions from power plants, even though that rule was not yet in effect.

These kinds of interventions have little precedent. The Supreme Court is usually the last place a case is heard, after lower courts have presented arguments and issued opinions.

“This court has shown interest in making law in this area and does not have the patience to wait for cases to get through the courts first,” said Kevin Minoli, an attorney who worked in the EPA’s office of general counsel. the Clinton through Trump administrations. “They’ve been aggressive in their statements. It’s like we’re going to tell you the answer before you even ask the question.”

According to experts, these decisions together threaten many existing environmental regulations. They could also prevent future governments from setting new rules.

“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 have all made sharp cuts to the federal government’s ability to enforce laws that protect us from polluters.”

The environmental litigation boom isn’t over yet: The court has agreed to hear next term a case that could limit the reach of the National Environmental Policy Act, the 1970 law that requires federal agencies to analyze whether their proposed projects will have environmental effects. Businesses and industries have long complained that the reviews can take years, cost a lot of money 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 decisions are a victory in a multi-year strategy to use the legal system to influence environmental policy.

Many of the filings overlap, including Republican attorneys general from at least 18 states, the National Mining Association, the American Petroleum Institute and the U.S. Chamber of Commerce.

The lead plaintiff in last year’s wetlands protection lawsuit, the Pacific Legal Foundation, is part of the network of conservative research organizations that has received funding from billionaire Charles Koch, chairman of the petrochemical company Koch Industries and a champion of anti-regulatory actions.

“You’re seeing a lot more coordination now than you used to, coalitions of states and trade groups to change administrative law,” said Damien M. Schiff, an attorney at the Pacific Legal Foundation. “Trade groups, the Chamber, PLF, we’re very intentional about taking cases that we hope they’ll win, in a precedent-setting way. The strategy and the tactics are the same. It’s internally coordinated.”

The Supreme Court has “demonstrated a greater willingness to exercise its authority earlier in the process,” Mr. Schiff said.

Prosecutors are also planning for the future.

President Biden has pledged that the United States will halve its carbon pollution by 2030 and eliminate it by 2050, something scientists say all major economies must do if the world is to avoid the deadliest and costliest effects of climate change. This year, the EPA has rushed to finalize new rules to curb pollution from cars, trucks, power plants and methane leaks from oil and gas wells.

If he wins a second term, Biden wants to cut emissions from steel, cement and other heavy industries, even though these industries have never been required to reduce their emissions that cause global warming.

But a string of recent Supreme Court losses could make it difficult for the EPA to implement these 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 differently on the environment, and especially on climate.”

Christine Todd Whitman, a Republican former governor of New Jersey and administrator of the EPA during the George W. Bush administration, said environmental regulations can sometimes go too far and need to be tempered by the courts. But she said she saw the recent Supreme Court rulings as an alarming new precedent.

“What this activist conservative court is doing now, what 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 circumvents and undermines the authorities. It’s as if they’re taking the attitude that all regulations are bad and we’re going to stop them all before they go too far.”

That will have damaging consequences, she said.

“If you don’t have clean air to breathe and water to drink, it’s going to cost a lot of money,” Ms. Whitman said. “This puts the lives of many people at risk.”

For example, the court’s decision to curtail 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 paved over without federal penalty, potentially harming thousands of species of plants and animals. What’s more, new research has shown that the court’s decision also leaves major U.S. river basins vulnerable to pollution.

Carrie Severino, president of the Judicial Crisis Network, said in a statement that the judicial decisions rightly transfer authority over decisions with major economic consequences from the executive branch to the legislature.

“For too long, unaccountable bureaucrats in D.C. have imposed destructive regulations that harm 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 that process by putting power back in Congress’ hands where it belongs,” she said.

On that last point, environmentalists and conservatives say they agree: If the federal government wants to protect the environment, Congress must 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 fifty years ago, before the effects of climate change and a global economy that has reshaped the ecological and economic landscape.

Since then, Congress has passed one major bill to address climate change: the Inflation Reduction Act 2022. It includes more than $370 billion in incentives for clean energy technologies, including wind and solar energy and electric vehicles. Climate experts call it a strong first step in reducing the country’s emissions, but say much more is needed to completely eliminate them over the next 25 years.

“Agencies have had to use old, existing laws for more than three decades to address new environmental problems,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “And this new court now makes that extremely difficult. Unless Congress is extremely specific, agencies cannot act. But with Congress largely immobilized, this in turn freezes what they can do.”