During the last session, the Supreme Court’s conservative majority struck at the authority of federal agencies to draft and implement policies aimed at mitigating climate change. The Supreme Court’s rulings have already caused confusion in courts considering issues ranging from solar project approvals to vehicle emissions regulations. This has upended the legal environment for judges and regulators and could ultimately slow climate progress.
The uncertainty surprised, but not surprised, legal experts, who predicted earlier this summer that four rulings limiting federal authority could limit the EPA and other agencies’ ability to limit pollution, manage toxic substances, and mitigate global warming.
“Climate policy is going to suffer as we go through years of litigation over what these cases actually mean when applied to individual rulemakings,” said Deborah Sivas, an environmental law professor at Stanford University. “That’s not good for the energy transition that we really need to get through.”
In its most significant ruling, the Supreme Court overturned the so-called Chevron doctrine, which since 1984 has given federal regulators broad leeway to use their expertise to interpret ambiguities in the law. Another ruling effectively Abolish the six-year statute of limitations In a lawsuit against a federal regulation, the door is opened to challenges to any policy, no matter how old it is. Litigation against the Securities and Exchange Commission Invalidated the use of in-house administrative law judges.It jeopardizes a key enforcement mechanism used by more than a dozen agencies. And the conservative majority that ruled in Ohio v. EPA blocked a federal smog reduction plan, a victory for polluters and conservatives who have long argued that EPA regulations are too burdensome.
The storm of litigation that arose from this decision began at the Supreme Court. On July 2, shortly after Chevron was struck down, the court Federal Energy Regulatory Commission Approves Solar Energy Project The case was sent back to the U.S. Court of Appeals for the District of Columbia, where the justices asked the lower court to reconsider “for the following reasons: Roper Bright Enterprises vs. RaymondoA decision that overturns Chevron’s respect.
The DC circuit may be the problem. In February, FERC ruled in Chevron’s favor. The utility is challenging the agency’s decision to designate solar and battery storage facilities in Montana as eligible facilities. Law of 1978 It requires utilities to purchase power from small renewable energy projects. The utility group argued that the projects were ineligible because their combined power capacity exceeded the size allowed under the law. The DC Circuit, citing Chevron, ordered the agency to stay the decision.
The justices will likely stick to their decision, but will have to explain their reasoning without relying on Chevron, she said. While the case could ultimately demonstrate the limits of Chevron’s ability to overturn regulatory actions (after all, legal scholars have other precedents they can cite, including Skidmore deference, which favors agencies when they provide compelling reasoning for their actions), it is indicative of future litigation now that the Supreme Court has “weakened the agency’s influence,” she said. “We’re already in the middle of it.”
Appellate judges have taken the lead from the Supreme Court and are beginning to send cases back to lower courts for retrial based on recent high court rulings. Last month, the Fifth Circuit ordered a Texas district court to Reconsidering the decision to uphold the Department of Labor regulations Allow retirement fund managers Considering climate risks When it comes to investing, Republican state attorneys general and fossil fuel companies have taken the rules into account.Arbitrary and capriciousBut a Texas court dismissed Chevron’s challenge in September, citing Chevron’s position that the reversal could put investors’ ability to Align financial decisions with climate action.
This Supreme Court ruling makes it more difficult to address climate change.
In other cases, courts are asking litigants to explain how recent Supreme Court decisions might affect their claims. For example, on July 30, the DC Circuit asked plaintiffs in a lawsuit challenging vehicle emissions standards set by the EPA and the National Highway Traffic Safety Administration to: Explain how the Chevron decision and Ohio v. EPA change the argument.The rule represents a broader push by the Biden administration to reduce emissions from the transportation sector, and could serve as an early test of what such climate policies might look like in a post-Chevron world.
It would be difficult to overstate the impact of Chevron’s collapse. The Supreme Court has not relied on this doctrine in recent years, but About twelve For years, lower courts have relied on it. About 17,000 times Since 1984, when they began considering the legality of regulations governing everything from food safety to air pollution, they no longer have a long-standing precedent to guide them.
The impact of the Supreme Court’s four recent decisions on the case remains unclear, said Jason Rylander, legal director for the Center for Biological Diversity, largely because the Chevron decision gives courts more latitude to rule on agency interpretations of federal law. So far, he said, Chevron deference has “put a small thumb on the scale” in favor of agencies like the EPA. Now, the courts “have to come up with what they believe is the best interpretation of the law.” They may or may not agree with the agencies. Either way, the courts have more power to reach their own conclusions, which creates more uncertainty, especially in conservative courts like the 5th and 11th Circuits.
Sending the case back to the lower courts for further review would almost certainly delay decisions and limit the effectiveness of federal policies addressing climate change and other issues. But the agency taking such action could have far greater implications as it faces increased scrutiny and litigation.
“Agencies will need to be much more thoughtful than they are now in justifying proposed regulations on the basis of the statutory language and explaining why they believe the regulation is consistent with Congress’ intent,” Rylander said.
What’s more concerning is that ongoing legal confusion could prevent agencies from advancing the bold policies needed to address the climate crisis.
“If agencies think these things can’t pass judicial review, they just won’t try,” she said.
Chevron’s demise is already a subject of controversy. Pursuant to FERC Order 1920:A rule announced three months ago requires regions to engage in long-term transmission planning to facilitate the deployment of renewable energy. The rule has already faced legal challenges from groups such as the Public Service Commission of Louisiana and Mississippi, with opponents saying Citing Chevron’s downfall One reason why legal scholars should consider the rule invalid. In another shocking example, U.S. Air Force lawyers recently told EPA that Chevron’s demise means the Air Force doesn’t have to follow the order. clean Perfluorinated compounds (PFAS)– Contaminated drinking water At Tucson International Airport in Arizona.
US military bases are full of PFAS, and there’s no clear plan yet to clean it up.
Meanwhile, the fossil fuel industry and other polluters have stepped up their challenges to environmental regulations, spurred by the Supreme Court’s recent ruling. In late July, Republican state attorneys general, rural electric cooperatives, and fossil fuel trade organizations Asked the Supreme Court to temporarily halt the EPA regulation. It’s meant to reduce greenhouse gas emissions from coal and gas-fired power plants. As in Ohio v. EPA, the plaintiffs are again asking the high court to block the rule as it makes its way through the D.C. Circuit. (The court previously suspended another EPA power plant emissions rule, the Obama-era Clean Power Plan, in 2016, but it never went into effect.) Legal experts say the Ohio v. EPA ruling demonstrates the Supreme Court’s willingness to take such sweeping action. And they say the court has clearly encouraged requests for emergency moratoriums.
“Industry lawyers think it’s a good time to attack regulations,” said Michael Jared, an environmental law professor at Columbia University. Driven by Ohio v. EPA and other Supreme Court victories, corporate clients concluded that “the cost of litigation is small compared to the benefits of winning.”
That attitude is evident in a recent publication from a major law firm, which recommended to its clients: Challenge federal regulations. “Now is a good time to reassess whether to challenge existing rules or previous interpretations of law.” Recommend a large law firm Following a recent Supreme Court ruling, global company Akin Gump He earned $7.9 million from 2019 to 2023. In lobbying activities related to fossil fuels, Highlighted In Corner Post, we discuss how the decision, which effectively ends the statute of limitations on challenging government regulations, creates new opportunities for clients and encourages companies to file lawsuits in “forums with more conservative judges.”
The expected increase in challenges to environmental regulations is exacerbated by the ongoing gridlock in Congress, Rylander said. Lawmakers are unlikely to amend the law to include detailed language on how agencies can act on climate change. That means federal agencies will increasingly have to rely on laws like the Clean Air Act, but they won’t be able to do so if they are stymied by court turmoil.
“We’re at a critical juncture in climate action, and in the absence of Congressional legislation, we’re going to be asking federal agencies to use more and more of the legal tools they already have,” Rylander said. “If the courts start to block that, it’s going to be disastrous for climate goals, and it’s going to be disastrous for humanity as a whole.”
