A Stoner Question Has Changed the Course of Climate Policy

What was Justice Roberts smoking?

The Supreme Court justices all agree on one thing: Congress sucks. “Congress has become a pathetic little circle jerk in which sad losers publicly crap their pants,” Justice Roberts (for all intents and purposes) wrote in his majority opinion on West Virginia v. EPA. “These feckless donkey turds wouldn’t know good legislation if it kicked them in the taint,” Justice Kagan (basically) wrote in a stinging dissent. In what’s probably the most contentious era of the Court in our lifetime, all nine justices concur that Congress is a rubber room for useless little dorks.

However, the justices disagree on who, specifically, is metaphorically stealing Congress’ lunch money and throwing their backpack into the girl’s bathroom. The conservatives think it’s the bureaucracy: “EPA claimed to discover unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute,” the Court (actually) wrote. The liberal justices think the Supreme Court is usurping Congress’ power; Justice Kagan (for reals) opined that the Court had “[stripped] the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’” This chasm in opinion led to starkly different views in the 6-3 ruling that greatly reduced EPA’s ability to regulate greenhouse gases.

I’m going to do something weird here: I’m going to focus on the law, not the policy outcome. Articles about Supreme Court rulings almost never discuss the relevant law. They focus on policy outcomes, and people cheer or decry rulings based on those outcomes. Everyone in America seems to believe that the objective answer to any legal question — in an amazing coincidence — just so happens to align with the policy outcome they prefer. We treat this fact as so obvious that any disagreement must be the work of devious activist judges. Conservatives sang this song for decades while liberals denounced them as sore losers, and now the roles have exactly reversed, but few people seem to appreciate the irony. So, before I start, I insist that we all:

A federal agency can't do anything without Congressional authority. The bureaucracy might be thought of as Congresses' contractors; they do jobs that Congress can't do themselves. It's a logical system; if the government needs to, say, break up a drug ring, that should probably be farmed out to highly trained DEA agents instead of having Chuck Grassley and Elizabeth Warren kick down doors themselves.

Congress often uses vague language to authorize various actions. They have to; it’s impossible to anticipate every nuance that an agency might encounter in the course of doing the thing Congress wants them to do. Broad language also provides longevity; the Alcohol and Tobacco Tax and Trade Bureau has the authority to regulate alcohol, generally, not a list of spirits that would be rendered obsolete every time the sick fucks at Budweiser add a new sin against liquor to their product line of the damned.

No Congress — no matter how demented — could have foreseen this.

So: Congress gives authority to federal agencies, but the parameters of that authority are vague pretty much by definition. The question in West Virginia v. EPA is whether EPA overstepped its authority in 2015 when it tried to regulate greenhouse gases from power plants. EPA claims that its authority comes from section 111(d) of the 1970 Clean Air Act, which is too long to cite in full, but I’ll link to it here in case you’re trying to commit suicide by boredom.¹ Luckily, understanding the key question in this case doesn’t require reading the full law — you just need to channel your inner stoned freshman and ponder this question: What, like…really is a SYSTEM, man?

The definition of the word “system” is at the center of this case. That’s because the law requires EPA to regulate air pollution according to “…the best system of emission reduction…that has been adequately demonstrated.” So: EPA can’t just say “cut your emissions in half”; they have to have a method for cutting emissions — a system, if you will — that actually exists on Earth. Traditionally, these systems have usually been technology such as “scrubbers” added to coal-fired power plants, though they could also be processes such as changes to how the plant operates.

The “system” EPA used in the 2015 regulation is — essentially — a cap-and-trade system for power plants. Plants that emit high levels of greenhouse gases (and we’re mostly talking about coal-fired plants) would have to reduce their emissions by either: 1) Switching to low-carbon methods of power production, or 2) By buying carbon emission credits from low-carbon producers elsewhere in the power grid. This market-based approach is the type of system that economists usually like. It’s an improvement on the old “command and control” style of regulation, in which a company could either: 1) Meet EPA’s pollution targets, no matter what the cost, or 2) Go straight to hell. Ironically, using a more-market-friendly method of regulation is what got EPA in trouble with the conservative justices.

Justice Roberts and the five justices who joined his opinion think that EPA’s cap-and-trade plan is absolutely not a “system”. Roberts writes:

“The word “system” shorn of all context, however, is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required.”

I have to say: I’m sympathetic to Justice Roberts’ concern here. You can’t have federal agencies seizing authority that nobody gave them by distorting the English language beyond all recognition. The dumbest articles and Twitter threads responding to this ruling have basically argued that the ruling is wrong because climate change is an EMERGENCY!!! I happen to believe that climate change is an emergency, but more importantly: So fucking what? You can’t chuck the rule of law out the window and say “It’s okay because: Emergency.” Most power grabs in history use emergency as pretext; the very concept of a dictator arose in ancient Rome as a temporary post in response to an emergency. Of course, the “emergency” never ended, and the post became the opposite of temporary, and Rome was unable to stab their way back to being a Republic.

So, the big question is: Is EPA’s plan a “system” as intended by the law? I think that it is. In her dissent, Justice Kagan cited the definition of “system” in Webster’s dictionary, which frankly provides more overlap between a Supreme Court opinion and a third grade book report than I’m comfortable with. Nonetheless, Kagan provides the Webster’s definition² in order to use a process that is “supposedly a staple of this Court’s supposedly textualist method.” She is – in jurisprudence speak – adopting her colleagues’ methods to demonstrate their deviation from prior reasoning. Phrased another way: She’s being a bit of a dick. But that doesn’t mean that she’s wrong.

Roberts argues that “system” has to mean what it has mostly meant since 1970, which is a solution – probably technology – implemented at the facility level. That is: It has to be one of the afore-mentioned “scrubbers”, or something similar. I think this is too narrow of a reading. The Clean Air Act mentions “technological solutions” many places, but not in Section 111(d). In her dissent, Kagan points to nine places in the Clean Air Act where Congress tells EPA to use technological controls, so Congress obviously wasn’t afraid to specifically mention technology when that’s what they had in mind. But 111(d) refers to “systems”, not technology. Conservative jurists often (rightly, IMHO) complain about judges finding words in the text that aren’t there, but I think that’s exactly what Roberts is doing. Congress voted broad language into law; Roberts reads that language and assumes they meant something more narrow, as if Rose Mary Woods extended her early-‘70s accidental deletion spree by striking out language limiting EPA’s authority.

Roberts argues that the fact that Congress has considered and not-passed various cap-and-trade schemes is evidence that they wouldn’t delegate similar authority to EPA. I think this is a weak argument. First, Roberts is presumably referring largely to the American Clean Energy and Security Act of 2009, the Congressional screw-up that just keeps on screwing. Congress did, indeed, fail to pass a cap-and-trade system in one of the more maddening examples of interest group influence in recent memory. But that proposal was far broader than what EPA had in mind. EPA’s cap-and-trade plan only applied to existing power plants; the 2009 bill applied to the entire economy. Citing that bill’s failure as evidence that Congress is dead set against all cap-and-trade systems is like arguing that choosing not to purchase a $600 prix-fixe dinner is evidence that you don’t want any food at all.

Also: Congress changes. It’s not a deity unmoored from time and space; it’s a constantly-changing pile of primates, many of whom are morons (I thought we agreed on this). I find it completely plausible that a Congress in Year X might create a power that a Congress in Year Y would not. That doesn’t render the Year X law invalid; the law remains in effect until Congress speaks again. Congress could pass a law clarifying the limits of Section 111(b), but they haven’t done so. Roberts is looking at the actions of the 2009 Congress – which was operating in the era of soft-money TV ads and the filibuster as a terrorist tactic – to divine the intent of the 1970 Congress, which, let’s be honest, was probably high as hell. This makes no sense to me.

In the course of ostensibly standing up for Congress’ authority, Roberts essentially neuters it. A plain reading of the law – one could say a textualist reading of the law – appears to grant EPA broad authority. To which Roberts says: “Nah”. He’s basically requiring Congress to pass a second law affirming what they said the first time. That’s enormously consequential, because polarization and the filibuster have made passing a major law about as easy as fitting a horse into a smart car. Those who favor a small regulatory state could pass a law defining the limits of EPA’s power, but on the other hand: No, they probably couldn’t, because passing laws is hard. Lucky for them, the Supreme Court has placed the onus of action on those who want EPA to do what Congress seems to have directed them to do 52 years ago.

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I began this article by mocking those who read the law in a way that supports their preferred policy outcome. And now I have read the law in a way that supports my preferred policy outcome. Welp…damn. Maybe I’m hopelessly biased – I did work for the EPA for nine years, after all. Though I’ll also point out that as a heterodox liberal blogger, I get credibility points by criticizing the left — an “I hate to say it, but Roberts is right” piece would have done well on Twitter. I won’t argue that I’m objective or fair-minded – I would never argue that. But I’ll argue that my craven self-interest doesn’t point in any clear direction.

This ruling means that it’s up to Congress to develop a way to reduce greenhouse gas emissions. Or, I should say: Develop another way to reduce greenhouse gas emissions, because as far as I’m concerned, they already did that in 1970. I don’t expect Congressional action in the near future; as we’ve discussed, Congress is a bunch of feckless little sad sacks who have about as much power as a pile of hair. And in my opinion, the Supreme Court, not the EPA, is behind the latest reduction in their power.

If you sense that I’m a bit blasé about a major policy setback on a major issue, that’s because as far as I’m concerned, this happened six years ago. When Trump got elected, it seemed clear to me that the regulatory path to emission reductions was closed off; I shall now swirl a snifter of brandy and reflect on how goddamned right I am about everything all the time. The funny thing is that even though the 2015 regulation never went into effect, the emission reductions it required happened anyway. Advances in renewables and natural gas extraction did more to move us away from coal than the EPA sought to do. I continue to feel that climate change will be solved by technology, and things like the green energy subsidies in the rotting corpse of the Build Back Better bill would help move us down that path. It’s up to Congress to act, if they can stop being such impotent little dweebs for even just a minute.

1. Section 111(d) of the Clean Air Act became Title 42 U.S. Code § 7411 when it became law.

2. According to the 1971 edition of Webster’s dictionary (which Kagan presumably chose because the Clean Air Act passed in 1970), a system is “a complex unity formed of many often diverse parts subject to a common plan or serving a common purpose”.