Rather than dive back into the Constitution Revisited, the last case decided by the Supreme Court before their summer recess is an excellent case study of the expectations and tensions that exist in our Constitution. In case you missed it, the ruling on June 30th in West Virginia v. EPA may be as consequential as the Roe verdict. Ironically, the court declared that when Congress passed and later amended the Clean Air Act numerous times that it really didn’t intend to give the EPA the ability to create regulations that would push power plants to transition to cleaner energy sources. The court decided to limit the ability of the Environmental Protection Agency to regulate carbon emissions and found the EPA had overstepped its authority. This may shift regulation back to the states which would certainly mean widely varying rules across states even though dirty air certainly respects no political boundaries. This fall, a similar case will be heard involving the Clean Water Act with the obvious observation that water doesn’t respect political boundaries either.

Justice Roberts, with 5 others, in their majority decision further invoked the term “major questions doctrine” which holds that when an executive agency claims a power to order changes of great economic and political significance the courts should be skeptical unless legislation has clearly and explicitly authorized. Another words, the court expects the legislature to be involved in the making of regulations that involve a significant economic and political change of direction. At first blush this does not seem unreasonable. Big significant changes in economic and political goals should be thoroughly debated, understood, with a consensus built. That is until you realize that this requires a functioning competent cooperative legislature. Guess the Supreme Court conveniently overlooked our polarized dialing-for-dollars do-nothing Congress. The other inconvenient truth is that climate change already involves escalating costs to our society and individual wallets. For evidence of this, look no further than your rising grocery, home/flood insurance, and summer energy bills. The other observation about this decision is that it will serve as a de-regulation mechanism. Deregulatory actions often become effective immediately. If Congress does attempt a solution, it may take several attempts because no one can predict what the Supreme Court will think is “significant, clear or explicit.”

The Constitution does not establish administrative agencies or prescribe how they may be created. The EPA was created via executive order by President Nixon in 1970 and ratified by congress. The Clean Air Act actually dates back to 1963 and has been amended numerous times to give the EPA authority to address such issues as acid rain, ozone depletion, engine emissions, lead emissions, etc. Ironically, this particular case involved a Clean Power Plan that sought to reduce greenhouse gas emissions in electricity generation. The plan arose during Obama’s term, Trump canceled the plan, and Biden did not revive which means the plan was moot, something not normally heard by the Supreme Court. The Robert’s activist court, however, was determined to further deregulate federal regulation.

Once upon a time, Congress largely consisted of members who identified themselves as lawyers. Today, according to the Brookings Institute, the most common self-identified profession of Congress is “lifelong politician.” (Please, can we all collectively scream “TERM LIMITS”?) Currently, we have 435 members in the House of Representatives with only five engineers and six scientists. I dare say most of these politicians wouldn’t know the difference between the periodic table and an eye exam chart. Congress does not have the expertise or resources to devise technical solutions to hard problems such as cleaner power generation. Ignoring this reality, the Supreme Court has turned over the hard technical challenges faced by our country and world to the clown car of “lifelong” politicians, painted over the windshield, put a brick on the accelerator pedal, and declared the legislators’ responsible drivers. The Roberts court has achieved “making the perfect, the enemy of the good.” Heaven, help us.