While decrying the Supreme Six’s EPA ruling, give Kagan, Breyer and Sotomayor hugs for their dissent

While decrying the Supreme Six’s EPA ruling, give Kagan, Breyer and Sotomayor hugs for their dissent

Plenty of people have already expressed their sad and righteous fury at the totally expected Supreme Court ruling in West Virginia v. EPA, the latest in its long roster of reactionary and lethal decisions this session. I’ve had a few things to say too. 

The Supreme Court just decided to pour gasoline on a planet afire and to slash the tires of the fire trucks.

— Meteor_Blades (@Meteor_Blades) June 30, 2022

But, amid the fury, I’d like to urge everyone also to praise the dissenters—Elena Kagan, who authored the dissent, joined by Sonia Sotomayor and Stephen Breyer. Praise and hugs, especially for Kagan and Sotomayor, who, along with newly sworn in Ketanji Brown Jackson, are obliged to deal with the Supreme Six face to face day after day as the majority tortures legal doctrine to undermine or dismantle decades (if not yet centuries) of judicial precedents.

To show why those hugs are deserved, here’s a short excerpt from Kagan’s dissent on the Environmental Protection Agency ruling:

The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shifting. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants. §7411(a)(1). The “best system” full stop—no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the “best system”—the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms.But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases. …

The majority claims it is just following precedent, but that is not so. The Court has never even used the term “major questions doctrine” before. And in the relevant cases,the Court has done statutory construction of a familiar sort.It has looked to the text of a delegation. It has addressed how an agency’s view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein,about what Congress would have made of the agency’s view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design. …

Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canonslike the “major questions doctrine” magically appear as get-out-of-text-free cards.8 Today, one of those broader goals makes itself 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. …

Courts should 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” for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. 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 subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.

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