‘It’s a move against the regulatory state’: Panelists discuss West Virginia v. EPA Supreme Court case


Daily file photo by Jeffrey Wang

The decision by the Supreme Court decreased the Environmental Protection Agency’s power to set emission limits for power plants.

Pavan Acharya, Assistant Campus Editor

Pritzker School of Law professors and legal activists discussed the impacts of the Supreme Court ruling in West Virginia v. Environmental Protection Agency on the judicial system and the state at a Monday panel hosted by the Alice Kaplan Institute for Humanities.

The decision, which came down in June, stated that the EPA does not have the power to set emission limits for power plants through the process of generation shifting from carbon-intensive fossil fuels to cleaner energy sources.

Critics saw the ruling as a blow to the EPA’s ability to fight climate change. 

“It’s a move against the regulatory state,” panelist and Earthjustice Managing Attorney Debbie Chizewer said. 

Chizewer was one of four panelists, alongside Pritzker Profs. Michael Barsa and David Dana and Earthjustice Strategic Legal Advocacy Director Kirti Datla. Earthjustice is an environmental law nonprofit.

The panelists also answered questions from a moderator, history Prof. Keith Woodhouse, and later audience members about the Supreme Court’s decision.

The court used the “major questions doctrine” as the basis for its decision, the first time it’s been used in a majority opinion. The doctrine applies in situations in which a novel federal agency rule will significantly impact the national economy. The court then investigates factors to determine whether Congress intended to give such authority to the agency.

Barsa said the major questions doctrine is ironic, as there is no basis for it within the Constitution. However, he also said there may be other motivations for the court to apply the doctrine.

“There’s a general skepticism towards the administrative state on the part of some conservative justices on a theory that these bureaucrats are not democratically elected,” Barsa said. “There’s this fear that you have these unelected bureaucrats running amok and there’s no check on them.”

The Supreme Court currently has a 6-3 conservative majority.

Barsa added that the decision may have unintended consequences for conservatives who support the decision: states now have increased powers to create their own environmental legislation separate from the federal government.

“I don’t really know that conservatives will be all that happy with that,” Barsa said. “But, this is the bed that they’ve made.”

Panelists also discussed potential difficulties Congress may face in writing environmental legislation specific enough to avoid court challenges. Barsa and Dana both said it will be difficult to write up specific statutes that can’t be second-guessed for their meaning.

However, Chizewer and Datla disagreed. Datla said it’s “not impossible” for Congress to write up these statutes and suggested the legislating body may face other questions or difficulties in writing unchallengeable environmental policy.

“The trick is not, ‘How do I write a statute?’” Datla said. “The trick is, ‘When do I know that I need to be specific?’”

Dana said he thinks the decision creates a significant judicial power allowing courts to decide what type of legislation from Congress is or isn’t clear. He also said it is unfair for the Supreme Court to expect Congress to write more specific statutes, given the current polarization of the institution and the country. 

However, Chizewer said there are other methods government officials can use to advocate for the environment beyond specific legislation, such as encouraging public utility commissions to use clean energy or by opposing the Line 5 oil pipeline beneath Lake Michigan. 

“There are a lot of different ways for the government to address climate change and advocate for the fight to transition from fossil fuels to clean energy,” Chizewer said.

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Twitter: @PavanAcharya02

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