Kagan Calls EPA Decision What It Really Is: Unvarnished Hostility Towards Agency Power

Justice Elena Kagan. Getty Image/TPM Illustration.

Justice Elena Kagan, writing for the liberals in dissent, gets to the core of what the conservative majority’s dismantling of the Environmental Protection Agency’s power is really about: its animosity towards agency power in general, and desire to shift that power to itself. 

The goal of the majority, she writes, is clear: “Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.”

She sorts through the text of the guiding statutes painstakingly, showing that the EPA’s regulation of power plants by enforcing a shift to cleaner energy sources is plainly encapsulated in its written authority. 

The proof that Congress entrusted the EPA with broad powers in this space is obvious, she argues. Congress added in limitations to other parts of its delegated authority to the agency. This sphere is well within what we’d expect the EPA to regulate.

“The current Court is textualist only when being so suits it,” she writes. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”

The major questions doctrine is a legal theory popular on the right, which states that Congress must explicitly delegate to agencies the ability to make rules on any given “major” questions, even if those questions appear to be covered by earlier laws, as is the case here.

Chief Justice John Roberts, writing for the majority, and Justice Neil Gosuch in his concurrence call this a “major questions” case, where the EPA’s theoretical efforts to force power plants to shift to cleaner energy sources — in straightforward ways like building new renewable plants, or more abstract ones like buying clean credits from across the grid — are simply too significant to be allowed under the Clean Air Act without Congress specifically authorizing the EPA to act. 

Such a yardstick is foreign to the Court’s normal operations, Kagan argues, when the text of laws Congress has passed clearly allows the agency’s actions. 

The majority, she says, “announces the arrival of the ‘major questions doctrine,’ which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules.” 

“The majority claims it is just following precedent, but that is not so,” she adds. “The Court has never even used the term ‘major questions doctrine’ before.” 

Similarly to how the majority has used historical analysis in recent major cases on guns and abortion, now it substitutes in the idea of the major questions doctrine for how these types of cases have traditionally been decided. That such a strategy leaves the conservative justices with their preferred policy outcomes must be just a coincidence. 

Kagan expands on why agency delegation makes sense: Congress is simply not suited to keep abreast of the latest climate technologies and developments, and lawmakers lack the expertise to craft regulations the way agency professionals do. 

Congress also, in general, has proven unable or unwilling to pass major climate legislation, often because of Republican opposition and the Senate filibuster. So with an inoperable Congress and shackled agency, who is left holding all the power? 

“In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s,” Kagan writes. “And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” 

“The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy,” she concludes. “I cannot think of many things more frightening.”

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