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Is the EPA About to Overreach Its Authority Again?

The Environmental Protection Agency recently announced it plans to slash the amount of greenhouse gas emissions produced by electricity-generating power plants. Assuming there will be legal challenges to the EPA’s plan, will the U.S. Supreme Court slap down the agency, yet again, for overreaching its authority, as it did in its West Virginia v. EPA decision last year?
The answer will likely depend on (1) how much authority Congress has given the EPA to regulate power-plant emissions and (2) to what extent the EPA exceeds that authority.
One thing we do know: overreachers gonna overreach. And the Biden administration has become the most overreaching administration we’ve seen.
Frustrated that he can’t get much of his agenda through Congress, Biden has given his political appointees a free hand to push the limits of executive authority. The courts, and especially the Supreme Court, are the only checks on Biden’s undemocratic efforts to bypass our elected representatives in Congress.
In West Virginia v. EPA, the EPA dug up an obscure and little used provision in the Clean Air Act to justify its major actions. In response, the Court clarified and reaffirmed the “major questions doctrine,” which asserts an agency needs to have clear congressional authorization before undertaking a major shift in policy.
As Chief Justice John Roberts wrote: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
The EPA’s “proposed regulation would be the first time the federal government has restricted carbon dioxide emissions from existing power plants,” according to the New York Times. And it would affect virtually all of the country’s coal- and natural gas-fired power plants, which currently generate about 60 percent of the nation’s electricity.
So, it’s a very big undertaking, and it comes on the back of the EPA’s recent announcement that will dramatically reduce tailpipe emissions, in essence forcing most Americans to buy electric vehicles.
The EPA hasn’t released its plans yet, but the agency will almost certainly be challenged in court.
One difference between this effort and West Virginia is that when “Democrats passed the Inflation Reduction Act last year, they added language that classified greenhouse gases as pollutants to be regulated by the E.P.A.,” the Times reports.
SCOTUS might deem that IRA language sufficient for EPA’s actions. Or it might not. The Court has said the EPA has the power to regulate emissions from power plants, but in a limited way. And acting in a “limited way” is not how we’d describe virtually any of Biden’s policy changes.