As pointed out here Thursday, the Supreme Court’s hideous ruling on affirmative action admissions could undermine the Biden-Harris administration’s efforts to bring environmental justice to predominantly Black communities disproportionately harmed by pollution. Today’s decision rejecting the administration’s forgiveness of student debt could mean the administration will also have a tough time getting its climate rules past the justices, several legal experts say.
The debt relief ruling in Biden v. Nebraska relied greatly but not exclusively on the “major questions doctrine” regarding the delegation of authority to federal agencies. In the past, deference has been given to agencies’ interpretation of broad laws passed by Congress. But the court has been stepping in to nix such interpretations if the issue at hand would be economically or politically significant.
The doctrine was brought to bear in last year’s 6-3 ruling in West Virginia v. the Environmental Protection Agency. The justices squelched the agency’s ability to impose “generation shifting” on power plants to move them from fossil fuels to alternatives such as wind and solar, arguing that Congress did not explicitly specify this authority. The justices seem determined to employ the doctrine whenever it suits them, often interpreting precedent in the most perverse, uncommonsensical manner.
In the debt relief case, Justice Elena Kagan made clear what is at stake for many agencies in her fiery dissent signed onto by Justices Sonia Sotomayor and Ketanji Brown Jackson, saying:
For years, this Court has insisted that the way to keep judges’ policy views and preferences out of judicial decision-making is to hew to a statute’s text. The HEROES Act’s text settles the legality of the Secretary’s loan forgiveness plan. The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules. What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other recent cases, the rules of the game change when Congress en-acts broad delegations allowing agencies to take substantial regulatory measures. […]
The majority finds no firmer ground when it reaches the merits. The statute Congress enacted gives the Secretary broad authority to respond to national emergencies. That authority kicks in only under exceptional conditions. But when it kicks in, the Secretary can take exceptional measures. He can “waive or modify any statutory or regulatory provision” applying to the student-loan program. And as part of that power, he can “appl[y]” new “terms and conditions” “in lieu of ” the former ones. That means when an emergency strikes, the Secretary can alter, so as to cover more people, pre-existing provisions enabling loan discharges. Which is exactly what the Secretary did in establishing his loan forgiveness plan. The majority’s contrary conclusion rests first on stilted textual analysis. The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole. But the whole—the expansive delegation—is so apparent that the majority has no choice but to justify its holding on extra- statutory grounds. So the majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And the majority again reveals that doctrine for what it is—a way for this Court to negate broad delegations Congress has ap- proved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch—and the hundreds of millions of people they represent—in making this Nation’s most important, as well as most contested, policy decisions.
Many environmental, public health, and safety regulations for dealing with emerging threats are founded on broad, general congressional authorization. And the court has usually gone along with that in the past. For instance, in the Massachusetts v. EPA ruling in 2007, the Supreme Court majority decided that the agency could regulate carbon emissions even though this was not included in the wording of the Clean Air Act.
Karen Sokol, a Loyola University New Orleans law professor, told Niina H. Farah and Leslie Clark at the paywalled GreenWire that today’s debt relief ruling requires “an extreme level of clarity on the part of Congress. And not just clarity, but more specificity as to what the secretary (of a federal agency) can do.”
The major questions rulings on the EPA, affirmative action, and debt relief could presage more to come. Sokol said, “The regulations that are going to matter most, such as climate, are going to be those that impact powerful economic and political actors. That automatically renders any regulation suspect, and it’s going to be subject to this exacting interpretation where it’s nearly impossible for Congress to have spoken with the requisite level of clarity.”
Said Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change, “Clearly there is some eyeballing that goes on in the justices’ assessment of what is major, what is staggering, what is an unheralded use of authority. It continues the trend in major questions decisions that leave individual justices with a great deal of discretion to make what appear to be value judgments in reviewing agency actions.”
Clearly more intolerable damage will come from these ideologues, at least two of whom are bespoke minions of billionaires determined to roll back the clock as far as they can. The major question doctrine for progressives is: What and when are we going to do something about it?
