How courts gained new power to curb federal environmental policy

In recent rulings, notably two last week, the Supreme Court has added obstacles government’s ability to regulate air pollution, water pollution and the greenhouse gases that warm the Earth. These decisions could enable conservative judges on lower courts across the country to block even more environmental regulations — not just under Biden but under presidents who follow him.

The recent rulings are “particularly valuable to conservative judges who are prone to invalidating (environmental) regulations,” said Sam Sankar, senior vice president of programs at the environmental law firm Earthjustice. “They used to have a knife; now they have a chainsaw.”

The Supreme Court on Thursday put on hold an Environmental Protection Agency plan to curb industrial air pollution that spreads across state lines. On Friday, the justices overturned the so-called Chevron a doctrine that severely limits the power of federal agencies to regulate fundamental aspects of American life, including the environment. And court decisions in 2022 and 2023 focused on EPA’s authority to limit greenhouse gas emissions and protect wetlands from runoff.

Taken together, these decisions demonstrate how a years-long campaign by industry and conservative groups is effectively weakening the power of the administrative state and the Environmental Protection Agency in particular.

The rulings “will likely constrain the Biden administration’s approach to climate change across the government,” in which the EPA plays a key role, said Matthew Z. Leopold, an attorney at Hunton Andrews Kurth LLP who served as the EPA’s general counsel in the Trump administration.

These decisions could limit U.S. climate policy as rising temperatures wreak havoc around the world. Heat on five continents broke 1,400 records last month, leaving tens of millions of people sweating and hundreds of reported deaths.

While it may take some time for the implications of the rulings to become fully clear, the next four years will be particularly significant. If Biden is re-elected, his core environmental policies may be even more vulnerable to legal challenges. If Trump wins a second term, he could appoint even more conservative judges who could continue to select environmental protections for decades.

Republican attorneys general and industry groups that backed the recent Supreme Court rulings said they were emboldened by the results.

“Today we are a little further along in our efforts to dismantle the administrative state,” West Virginia Attorney General Patrick Morrisey (R) wrote on Friday on X, adding: “I am proud of my team for all of their outstanding work over the years that has allowed to be a part of it all.”

Trump overhauled the American justice system, installing more than 220 federal judges, including almost as many influential federal appeals court judges in four years as Barack Obama appointed in eight years. He also appointed three Supreme Court justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — who generally expressed deep skepticism about the power of the environmental protection agency.

Thursday’s decision, written by Gorsuch and supported by most of the court’s conservatives, may have the most immediate impact on the ground. It effectively halted the EPA’s enforcement of limits on harmful air pollution that spews into downwind states from power plant stacks, pipelines and factories. The agency estimated that the rule, known as the “good neighbor plan,” would provide significant health benefits to residents of downwind states.

“In 2026 alone, EPA projected that the final Good Neighbor Plan would prevent 1,300 premature deaths, avoid more than 2,300 hospital and emergency room visits, reduce millions of cases of asthma symptoms, and avoid hundreds of thousands of missed school days and tens of thousands of missed work days,” EPA spokesman Timothy Carroll said in an email, adding that the agency believes the rule “is firmly embedded in its authority under the Clean Air Act.”

Thursday’s ruling bodes ill for the EPA’s ability to defend other important regulations against a storm of legal challenges, said Pat Parenteau, a retired law professor at Vermont Law and Graduate School. He predicted that the EPA’s upcoming limits on greenhouse gases from natural gas-fired power plants would be “really vulnerable” and “rigged to be reversed.”

The Biden administration’s most consequential climate rule — efforts to boost sales of electric vehicles while reducing emissions from gasoline-powered cars and trucks — could also face a tough test in the courts.

Republican attorneys general from more than two dozen states have sued the EPA over the rule, arguing that the agency has overstepped its authority in trying to reshape the U.S. auto market. The largest trade association for the U.S. oil and gas industry, which could see demand for its products fall as consumers switch to electric vehicles, also challenged the rule in the U.S. Court of Appeals for the D.C. Circuit.

The EPA will have to convince the court that Congress authorized it to issue the rule, said Jeff Holmstead, a partner at the law and lobbying firm Bracewell LLP and a former top EPA official under President George W. Bush.

“The question will be, ‘Did Congress clearly intend to give the EPA the authority to force fundamental changes in the transportation sector?’” Holmstead said. “And the answer may be that Congress certainly could do it on its own, but there is nothing to suggest that Congress intended to give the EPA that authority.”

The manner in which the decision was reached Thursday was unusual: The justices took up the case on an emergency basis while it was still pending in the D.C. Circuit. Typically, the higher court waits for the conclusion of proceedings in lower courts before making a decision.

The unusual trial – and its outcome – could embolden those challenging the EPA’s emissions limits for cars and trucks, said Robert Percival, who directs the environmental law program at the University of Maryland.

“They know they’re probably going to lose in the D.C. District, but they’re probably popping champagne with Leonard Leo right now, saying, ‘We’re going to be able to block this at the Supreme Court,’” Percival said, referring to the conservative legal activist and former vice president president of the Federalist Society who wanted to transform the courts in the country.

Long-term effects of overthrow Chevron doctrines are harder to predict, but likely to be profound.

This doctrine—one of the most frequently cited in U.S. law—was established by the Supreme Court’s landmark 1984 ruling in Chevron USA v. Natural Resources Defense Council. This required courts to defer reasonable interpretations of ambiguous statutes by federal agencies.

Friday’s decision to overturn Chevron is sure to trigger a wave of lawsuits against the EPA and other federal agencies. In resolving these challenges, courts will no longer be guided by EPA’s interpretation of ambiguous parts of environmental statutes.

This could pose a significant challenge to the agency in the absence of congressional action. The Clean Air Act and Clean Water Act were passed more than 50 years ago, and Congress has passed few other environmental protections since then, even though the science of climate change has advanced significantly.

“The net effect” of Friday’s ruling “will be to weaken our government’s ability to deal with the problems that the modern world always throws at us — big issues like climate change, COVID or the next pandemic,” said David Doniger, senior policy director for the climate and clean energy program at the Natural Resources Defense Council, who argued Chevron thing.

Still, Congress passed Biden’s signature climate bill in 2022, giving the EPA more authority to cut planet-warming emissions, Doniger said. For the first time, the climate law, known as the Inflation Control Act, defined greenhouse gases as air pollutants that the EPA can regulate under the Clean Air Act.

Writing on behalf of the majority, Chief Justice John G. Roberts Jr. called Chevron “fundamentally wrong” that it gives agencies too much latitude in interpreting Congress’ intent. Roberts has said he would prefer to give lower court judges the power to interpret statutes — even though environmentalists say those judges lack the technical knowledge of scientists and agency regulators.

Gorsuch, in agreement with Roberts, sought to minimize the impact of Friday’s ruling, noting that the Supreme Court did not rely on Chevron in deciding cases over the past eight years. “Today’s decision merely means that future federal courts will proceed in exactly the same way that this Court has done since 2016, exactly as it did before the mid-1980s of bias in favor of the government,” he wrote.

The Court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – disagreed, and Kagan wrote in his dissent that the conservative majority had amassed too much power for the judiciary.

“Now the courts (not the agency) will exercise authority as Congress grants interpretive discretion,” Kagan wrote. “The principle of judicial humility is giving way to the principle of judicial hubris.”

EPA spokesman Carroll referred questions about Friday’s ruling to the White House, where press secretary Karine Jean-Pierre said in a statement that it was “another deeply troubling decision that is setting our country back.” Republican-backed interest groups have repeatedly asked the Supreme Court to block common-sense rules that keep us safe, protect our health and the environment, safeguard our financial system and support American consumers and workers.

Jean-Pierre was apparently referring to the network of conservative groups that have been fighting to overturn it for years Chevron. Many of these groups received millions of dollars from the Koch network, founded by petrochemical billionaire Charles Koch and his late brother, David Koch. Justice Clarence Thomas attended two Koch donor summits as Chevron the case went to a higher court.

The judges did not end their streak of environmental cases. In the next term beginning in October, the Supreme Court will take up a case that could limit the reach of the National Environmental Policy Act, a 1970 law that requires agencies to study the environmental impacts of pipelines, highways and other infrastructure projects.