Supreme Court Restores Limits on Executive Agencies
Climate Change Weekly #440
During the final weeks of the U.S. Supreme Court’s 2022 term, the Justices issued some truly historic rulings. In doing so, the Court went a long way toward reestablishing itself as a coequal branch of government designed to uphold individual rights guaranteed by the U.S. Constitution against illegal government restrictions, while defending the separation of powers, laid out in the Constitution, among the branches of the federal government and between the federal government and the states.
The cases decided by the Court included the president’s power to set immigration policy, state and local governments’ discrimination against expressions of religious faith, limits on gun rights, and the federal guarantee of access to abortions, among numerous other issues the Court ruled on.
As important as the rulings in this wide range of cases are, the decision in West Virginia v. EPA, setting limits on the administrative state’s powers, is arguably the most consequential and far-reaching from an economic standpoint and in regard to the Constitution’s separation and delegation of powers.
The 6-3 decision written by Chief Justice John Roberts in West Virginia v. EPA denies the U.S. Environmental Protection Agency’s (EPA) attempt to use an obscure provision of the 1963 Clean Air Act to usurp states’ longstanding authority to manage their electric power grids, by limiting the allowable generating sources. In its 2015 Clean Power Plan, the EPA tried to force states to close their coal plants, limit use of natural gas, and expand wind and solar generation in order to “decarbonize” America’s power supply.
The Court majority held that the EPA grossly overstepped its statutory authority in regulating carbon dioxide. The U.S. Constitution delegates to Congress alone the power to regulate interstate commerce. Unelected bureaucrats may not usurp that power by addressing major questions, meaning policies that are politically and economically significant, without clear direction from the legislature. Carbon dioxide is ubiquitous, and sharply limiting it by restructuring the nation’s power grid is a major undertaking that would impose trillions of dollars in costs, affect millions of jobs, and disrupt every sector of the economy. Redesigning the nation’s power grid, as the EPA attempted to do by dictating how the states power their economies, is a major policy undertaking, and Congress did not delegate it to the EPA.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” wrote Chief Justice John Roberts for the majority. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Not only did the Court’s majority find Congress never explicitly granted the EPA the kind of power it claimed, Congress had taken up proposals to limit carbon dioxide emissions on several occasions and chose not to enact them, Roberts noted.
“At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon,” Roberts wrote. “Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. It has also declined to enact similar measures, such as a carbon tax.”
A concurring opinion authored by Justice Neil Gorsuch expanded on Roberts’ line of reasoning. Congress’s choice not to act on an issue a particular presidential administration may think is important is not a grant to executive agencies undertake action on their own, regardless of how dire the administration or agency may believe the problem to be. Gorsuch writes,
When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur.
“The Supreme Court rightly stayed in its lane in this case, as the Trump Court has increasingly been doing, restoring the separation of powers that is necessary to avert tyranny while leaving policy questions to Congress,” said S. T. Karnick, a senior fellow at The Heartland Institute, in a press release commenting on the ruling. “Ruling narrowly on whether the EPA was operating under authority granted by Congress in declaring carbon dioxide a pollutant, the Court correctly determined that the agency had overstepped its bounds, and that is that.
“Regardless of one’s opinion of the policy the rule was meant to establish, the EPA had no authority to impose it,” said Karnick.
The Court’s ruling in West Virginia v. EPA has implications far beyond the EPA’s desire to regulate greenhouse gas emissions. The court’s reasoning also limits the ability of cabinet departments, such as the Department of Housing and Urban Development (HUD) and the Department of Transportation (DOT), and agencies such as the Securities and Exchange Commission (SEC) and the Federal Energy Regulatory Commission (FERC) to regulate greenhouse gas emissions. If the EPA, which is charged with protecting the environment, can’t restructure the economy to limit greenhouse gas emissions, neither can other departments or agencies for which protecting the environment is at best tangential to their areas of authority. The Court’s ruling should effectively bar the proposed rules at HUD, the DOT, and FERC intended to force public housing developers, infrastructure developers, and utilities to limit greenhouse gases to obtain approval for their projects. And with the Court’s reasoning in mind, the SEC should not be allowed to dictate that every publicly traded company account for and develop plans to address climate change or face government sanctions.
The Court’s ruling goes far beyond the issue of climate change. With this decision, the Court has effectively informed federal agencies that the separation of powers is alive and well, and Congress alone makes law. Going forward, departments and agencies will have to exercise appropriate restraint and humility when regulating, strictly adhering to their mission and the letter of the laws passed by Congress. If executive agencies enact policies that involve major questions, courts will no longer necessarily defer to their judgements about whether a particular rule or policy is justified or sanctioned by Congress.
As Steve Milloy, a member of The Heartland Institute’s board of directors, wrote in an editorial responding to the Court’s ruling in West Virginia V. EPA, there remains a lot of work to do to halt dangerous efforts to end fossil fuel use and restructure the economy to far-left elitists’ liking. But the Supreme Court’s decision is a very good start.
IN THIS ISSUE …
COLD KILLS MORE PEOPLE THAN HEAT, STUDY CONFIRMS … ISLANDS GROWING FASTER THAN SEAS ARE RISING … COAL AND GAS MAKE A COMEBACK IN EUROPE
COLD KILLS MORE PEOPLE THAN HEAT, STUDY CONFIRMS
A new study in The Lancet confirms what previous peer-reviewed studies have found: cold temperatures kill far more people than hot temperatures.
The new study, from 15 researchers at universities, research institutes, and government agencies in China and the United States, examined the incidence of premature mortality attributable to nonoptimal temperatures across all the provinces of China. Between 498,000 and 704,000 deaths were attributable to nonoptimal temperatures in China in 2019, with the best estimate being 593,000 premature deaths, the scientists found. Of the deaths traced to nonoptimal temperatures, 580,000 of were caused by health factors attributed to cold temperatures, and approximately 13,000 were tied to warm temperatures.
This research indicates approximately 46 times more people in China died from cardiovascular and respiratory problems effected by nonoptimal cold temperatures than nonoptimal hot temperatures.
China is the most populous country on Earth, and its results coincide with the findings of two previous large-scale (global), long-term studies previously published in The Lancet (in 2015 and 2021): cold kills more people than heat, and should the Earth continue its modest warming, the number of deaths attributable to nonoptimal temperatures should decline sharply.
The 2021 Lancet study examined premature mortality tied to nonoptimal temperatures across 43 countries accounting for more than five million such deaths annually between 2000 and 2019. Regardless of the country or region—cold, hot, or temperate—cold-related deaths greatly outnumber heat-related deaths, accounting for 10 to 20 times as many fatalities, the scientists found.
ISLANDS GROWING FASTER THAN SEAS ARE RISING
A report published in Human Progress found the claim that rising seas driven by climate change are submerging small island nations is bunk. Analyst Joakim Book writes,
A repeated fear—and political football—in the climate change conversation is the plight of small island nations. When the United Nations’ climate summits roll around, these nations, consisting of islands and atolls barely a few feet above sea level, are, like clockwork, made out to be victims of an ever-encroaching ocean.
Because seawater level rises have accelerated in recent decades and low-lying islands are supposedly the most vulnerable, we’d expect at least some of them to have lost land area to the sea.
In reviewing the literature, Book found sea levels are rising by only 3 to 3.6 millimeters per year, not the computer-model-generated runaway rate of 25 millimeters cited in most stories claiming small-island nations are being submerged by rising seas. Even more importantly (and unsurprisingly), Book found most island nations are taking adaptive measures to harden themselves against sea level rise instead of acting helpless and doing nothing about it. “Globally speaking, the world is reclaiming more area from the oceans than the rising tides swallow,” Book writes. Research from far-flung locations in the Netherlands, Vietnam, and island chains in Tuvalu, the Marshall Islands, and the Maldives shows these areas are gaining land mass and their populations, infrastructure, and economies are growing despite the (slowly) rising seas.
“Despite gradual sea level rise, the most low-lying island nations on the planet are growing—they are adapting to rising sea levels and overcoming the changes that their natural environment presents to them,” Book writes.
SOURCES: Human Progress
COAL AND GAS MAKE A COMEBACK IN EUROPE
Russia’s invasion of Ukraine is forcing Europe to reconsider its commitment to ending fossil fuel use. Countries from Denmark to Germany and beyond are reopening coal plants once shuttered to fight climate change and are restarting or advancing plans for domestic natural gas development.
France 24 reports Austria, Germany, and the Netherlands are removing all restrictions on the use of coal to fuel power plants and are reopening shuttered plants to keep their electric power grids from collapsing because of the loss of Russian natural gas upon which each country had become reliant.
“The cabinet has decided to immediately withdraw the restriction on production for coal-fired power stations from 2002 to 2024," Rob Jetten, the Dutch minister for climate and energy policy, told journalists, France 24 reports.
Before the announcement, the Netherlands had limited fossil fuel plants to providing no more than a third of the electric power generated in the country.
While reaffirming its commitment to phase out coal use by 2030, Germany announced it was restarting previously shuttered coal power plants after Gazprom cut deliveries via the Nord Stream gas pipeline last week.
Green Party representative Robert Habeck, vice chancellor of Germany and federal minister for economic affairs and climate action, told France 24 the government’s decision to revert to coal was ‘bitter, but indispensable for reducing gas consumption.’”
Austria announced it was working with the country's main electricity supplier to bring a closed coal-fueled power station in the southern city of Mellach back online because of the loss of natural gas from Russia.
In addition to addressing electric power shortfalls tied to the war in Ukraine, some European countries are moving to produce domestic supplies of gas to ensure they are not left without power in the event of other crises limiting access to foreign energy, Euractiv reports.
The Dutch, for example, announced a joint Dutch-German North Sea natural gas drilling operation that had been blocked by the German state of Lower Saxony was now moving forward, the German state having withdrawn its objections. Drilling is expected to begin in 2024.
In addition, Albania, Italy, Romania, and Slovakia are all moving forward with plans to develop domestic reserves of natural gas, Euractiv reports.
For many EU governments, energy security, or at least the desire to have electric power and thus stay in political power, are evidently trumping climate commitments.