Democrats, anticipating Chevron’s demise, gave the EPA more power in the recent climate law.
The Biden administration is preparing to topple Chevron, knowing that conservative activists have been pushing these kinds of cases and that the majority of Supreme Court justices are expected to look favorably on it.
That’s why the White House worked with Democrats in Congress two years ago to push through legislation that could help protect the Environmental Protection Agency’s authority to regulate climate change even if the Chevron Doctrine was struck down.
Climate change rules could be particularly vulnerable to legal challenge in a post-Chevron world. That’s because the EPA wrote them under the authority of the Clean Air Act of 1970, a sweeping law that directs the agency to regulate all pollutants that endanger human health.
But nowhere in the law did 1970 lawmakers specify that carbon dioxide emissions, the leading cause of climate change, should be regulated. Climate change isn’t even talked about.
Democrats changed that in the Inflation Reduction Act of 2022, a bill that focused largely on spending billions of dollars on clean energy technology to combat climate change. But the bill amends the Clean Air Act to define carbon dioxide produced by burning fossil fuels as an “air pollutant.”
According to legal experts and the Democrats who helped shepherd the text into the legislation, the language explicitly gives the EPA the authority to regulate greenhouse gases and to use that power to promote the adoption of wind, solar and other renewable energy sources.
The specificity of that legal language should protect the EPA’s authority to regulate carbon dioxide pollution by limiting its emissions from tailpipes and smokestacks.
However, opponents of the rule — particularly the fossil fuel industry — are still expected to use the demise of the Chevron doctrine to try to weaken the specifics of those rules.
