A series of Supreme Court rulings strikes at environmental protection regulations

A series of Supreme Court rulings over the past two years have significantly weakened the Environmental Protection Agency’s authority to cut air and water pollution, regulate the use of toxic chemicals and reduce greenhouse gases that contribute to rising temperatures on the planet.

This term, the Supreme Court’s conservative qualified majority issued several rulings limiting the power of many federal agencies.

But the Environmental Protection Agency has come under particular fire in a series of cases filed since 2022 by conservative activists who say EPA rules have raised costs for industries from utilities to housing, arguments that have resonated with judges skeptical of government regulation.

On Friday, the court ended the application of the so-called Chevron doctrine, a cornerstone of administrative law for 40 years that has held that courts should defer to government agencies to interpret ambiguous regulations. The decision threatens the authority of many federal agencies to regulate the environment, as well as health care, workplace safety, telecommunications, the financial sector and others.

More unusual, however, were several court decisions to intervene to halt environmental regulations before they were issued by lower courts or even implemented by the executive branch.

On Thursday, the court said the EPA could not limit pollution from smokestacks blowing across state borders under a measure known as the “good neighbor rule.” In this case, the court took the surprising step of making its decision while the case was pending before the U.S. Court of Appeals for the District of Columbia Circuit.

The court also took unusually preliminary action last year by striking down a proposed Environmental Protection Agency (EPA) regulation known as Waters of the United States, which would have protected millions of acres of wetlands from pollution, acting even before the regulation finally took effect.

Similarly, in a 2022 challenge to the Environmental Protection Agency’s climate proposal known as the Clean Power Plan, the court limited the agency’s ability to regulate greenhouse gas emissions from power plants, although that rule has not yet taken effect.

There are few precedents for this type of intervention. The Supreme Court is usually the last place to hear a case, after arguments have been presented and opinions issued by lower courts.

“This court has shown an interest in legislating in this area and has not had the patience to wait for cases to come to court first,” said Kevin Minoli, a lawyer who worked in the EPA’s office of general counsel for Clinton through the Trump administration. “They were aggressive when deciding. It’s like we’re giving you the answer before you even ask the question.

Experts say that collectively, these decisions not only threaten many existing environmental laws, but could also prevent future administrations from developing new ones.

“These are some of the worst environmental law rulings the Supreme Court will ever issue,” said Ian Fein, senior staff attorney at the Natural Resources Defense Council, an advocacy group. “They all starkly challenge the federal government’s ability to enforce the laws that protect us from polluters.”

The march of environmental cases is not over: The court has agreed to hear a case next term that could limit the reach of the National Environmental Policy Act, a 1970 law that requires federal agencies to analyze whether their proposed projects have environmental consequences. Companies and industries have long complained that the reviews can take years, inflate costs and be used by advocacy groups to block projects.

For a coalition of industries, conservative interest groups and Republican attorneys general and their sponsors, the recent decisions are a victory in a long-standing strategy of using the judicial system to influence environmental policy.

Many of the same cases are being brought by entities acting on behalf of the government, including Republican attorneys general from at least 18 states, the National Mining Association, the American Petroleum Institute and the U.S. Chamber of Commerce.

The lead plaintiff in last year’s wetlands protection case was the Pacific Legal Foundation, part of a network of conservative research organizations that have received funding from billionaire Charles Koch, chairman of petrochemical company Koch Industries and an anti-regulation human rights advocate.

“You’re seeing a lot more coordination now than you used to, coalitions of states and trade groups to change administrative law,” said Damien M. Schiff, an attorney with the Pacific Legal Foundation. “The trade groups, the chamber, the PLF, we are very conscious of taking on cases that we hope will win in a precedent-setting manner. The strategy, tactics are the same. This is coordinated internally.”

The Supreme Court “has shown a greater willingness to use its authority earlier in the judicial process,” Schiff said.

The plaintiffs are also considering a strategy for the future.

President Joe Biden has pledged that the United States will cut its carbon emissions in half by 2030 and eliminate them by 2050, something that scientists say all major economies must do if the world is to avoid the deadliest and most costly impacts of climate change. This year, the EPA rushed to finalize new rules to limit pollution from cars, trucks, power plants and methane leaks from oil and gas wells.

If he wins a second term, Biden wants to cut emissions from steel, cement and other heavy industries that have never had to cut planet-warming emissions.

But a series of recent defeats in Supreme Court proceedings could make it harder for the EPA to carry out those plans.

“There’s been a steady erosion of environmental law,” said Patrick Parenteau, an environmental law expert at Vermont Law School. “These decisions mean that Biden, if elected to a second term, will be unable to do much more to protect the environment, especially the climate.”

Christine Todd Whitman, a former Republican and former New Jersey governor who served as administrator of the Environmental Protection Agency under George W. Bush, said environmental regulations can sometimes go too far and need to be tempered by courts. But she said she sees the recent Supreme Court rulings as a new, alarming precedent.

“What this conservative activist court is doing now that really upsets me is trying to implement a political agenda,” Whitman said. “They are looking for an opportunity to make a statement. And this bypasses and undermines agencies. It’s as if they have the attitude that all regulations are bad and that we will stop them all before they go too far.”

This will have harmful consequences, she said.

“If you don’t have clean air to breathe and water to drink, it’s going to cost you a lot,” Whitman said. “That puts a lot of people’s lives at risk.”

For example, the court’s decision to limit the EPA’s authority to regulate wetlands and so-called ephemeral streams means that about half of the nation’s wetlands can be polluted or paved over without federal penalty, potentially harming thousands of species of plants and animals. In addition, new research has found that the court’s decision is exposing major U.S. river basins to pollution as well.

Carrie Severino, president of the Judicial Crisis Network, said in a statement that the legal rulings properly transfer authority over decisions with large economic impacts from the executive branch to the legislative branch.

“For too long, unaccountable bureaucrats in D.C. have imposed destructive regulations that hurt farmers, fishermen, and countless small business owners already struggling to survive in our global economy, and the Supreme Court has an opportunity to restore accountability to that process by putting that power back in the hands of Congress where it belongs,” she said.

On that last point, environmentalists and conservatives say they agree: If the federal government wants to protect the environment, Congress should update existing laws and pass new legislation.

The nation’s foundational environmental laws, the Clean Air Act and the Clean Water Act, were written more than 50 years ago, before the effects of climate change and the global economy transformed the environmental and economic landscape.

Since then, Congress has passed one major piece of legislation aimed at combating climate change — the Inflation Reduction Act of 2022. It includes more than $370 billion in incentives for clean energy technologies, including wind, solar and electric vehicles. Climate experts call it a strong first step toward reducing the nation’s greenhouse gas emissions, but they say much more is needed to eliminate them entirely within the next 25 years.

“The agencies have had to use old, existing laws to deal with new environmental problems for over 30 years,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “And this new court now makes it incredibly difficult. The agencies can’t act unless Congress says something very specific. But because Congress is largely immobilized, that in turn freezes what they can do.”

This article originally appeared in The New York Times.