The climate impact of the doctrine that Democratic presidents can’t govern

There’s a cool new climate site called Heatmap that launched today. I have a piece about Republican judges who think that the Environmental Protection Agency should not be able to issue regulations to protect the environment:

In an opinion written by Chief Justice Roberts and joined by other conservative justices, the Court held that the program ran afoul of the recently-invented “major questions” doctrine.” According to Roberts, the doctrine means when considering some “extraordinary cases” with heightened “economic and political significance,” the Court should “hesitate” and require that the administrative agency point to “clear congressional authorization” for its actions. Roberts asserted that the Environmental Protection Agency had failed to show a clear authorization, and hence the CPP exceeded the EPA’s authority.

The decision reflects an implausibly narrow view of the EPA’s authority. Section 111 of the Clean Air Act authorizes the EPA to regulate pollutants that “may reasonably be anticipated to endanger public health or welfare.” It also authorized the EPA to identify the “best system of emissions reduction” for power plants. The Clean Power Plan fell squarely within the statutory scheme. Greenhouse gases that accelerate climate change would seem to a paradigmatic example of what Congress wanted the EPA to regulate – carbon emissions are pollutants, and there can be no serious question that climate change poses a major threat to public welfare and safety. And the CPP’s measures to encourage power companies to either use cleaner sources or participate in a cap-and-trade program fall within its authority to select the best system for emissions reduction.

The majority’s holding that the CPP falling within the terms established by the statute was insufficient because a problem as big as climate change requires more specific authorization is perverse. As Justice Kagan observed in her dissent, a “key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.” Congress did not think it could anticipate every environmental problem that could be caused by air pollution, which is precisely why it delegated the authority to address unexpected problems to the EPA.

Indeed, environmental regulation is a classic example of why Congress’s authority to delegate should be deferred to rather than subjected to ad hoc rules created by the federal judiciary. Environmental science is not a static field. There are frequently new findings about the effects of various environmental hazards and new technologies for addressing these hazards in an economically feasible way. Even a highly functioning and efficient legislature filled with experts in environmental science and economics would not be able to issue specific regulations reflecting new evidence and technological developments, and the actually existing, frequently gridlocked Congress meets neither of these conditions. This is why the longstanding practice is for Congress to set the goals and for the EPA to issue regulations commensurate with these goals, subject to oversight by elected officials in the legislative and executive branches.