We Are Not “All Textualists Now”

Yesterday,  in West Virginia v. Environmental Protection Agency The Supreme Court ruled that Section 111 of Clean Air Act does not give the Environmental Protection Agency the authority to set greenhouse gas emissions limits for power plants based upon generation switching. The ruling is summarized here. You can also find links to previous posts in the case.

Justice Elena Kagan submitted a strong dissent challenging the majority’s interpretations of Clean Air Act, and their explicit reliance upon the “major question doctrine” in order to limit EPA’s authority.

Justice Kagan concludes his dissent with an aggressive challenge to Court’s professed textualists. Kagan’s opinion

I remember thinking that years ago “[w]”We are all textualists right now.” . . . I must have been wrong. The Court currently is textualist when necessary. If that would be against broader goals special canons, such as “major Questions doctrine”, magically become get out of-text-free cards.  Today’s broader goal is to prevent agencies from performing important work. This was even though Congress had directed it. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.

Justice Kagan’s analysis is strong, but she doesn’t fully address the Clean Air Act portions that undercut her conclusion. Instead, Justice Kagan focuses only on “Best system for emission reduction” and does not really address the portions of the Clean Air Act which indicate that such systems should be implemented on a source-specific basis. However, to be fair, her majority opinion doesn’t really call for it. Instead, it relies on more of the major questions doctrine rather than on careful and thorough statutory analysis. In this context, there are some similarities between the majority opinion and the opinion in NFIB v. OSHA.) Justice Gorsuch agrees with the progenitors of the major question doctrine. However, it fails to match Kagan’s view on the text.

Justice Kagan ends her opinion by praising delegation and cautioning against limits to such power. The conclusion of her opinion is:

There are many reasons Congress should have the final say in matters relating to delegations. Congress is well-informed about government
In ways that courts cannot, Congress works. Congress also knows the best mix of administrative as well as legislative actions to achieve good policy. It is important for courts to be modest.

Today the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the “best
“system of emission reduction” refers to power plants that emit carbon dioxide. EPA is responsible for evaluating systems of emission reduction. Nothing in the Clean Air Act or other statutes suggests Congress didn’t intend for the delegation to be extended as it says. The Court has rewritten the text to substitute its ideas for Congress’s about delegations. This means that the Court will substitute its ideas for Congress about policymaking. The Court will not permit the Clean Air Act’s operation to be done as Congress directed. It is the Court that will decide.
Will decide how much regulation is excessive.

Because the subject matter of this regulation is so important, the Court’s intervention here is all the more worrying. The Court doesn’t know anything about climate change, no matter what else it may be aware of. It is obvious that the stakes are very high. Yet, the Court prevents Congress from authorizing agency action for reducing power plants’ carbon dioxide emission. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. It is hard to imagine anything more alarming. Respectfully, I disagree.