US Supreme Court blows up government authority to regulate carbon emissions
"Major questions doctrine"? You've just made that up, says dissenting justice.
Politicians are generally useless. We get that. For the most part politicians are dilettantes who spend the bulk of their energies achieving and maintaining power, saving little or nothing for actually getting stuff done. And when they do get things done, it is often through delegation of authority to others with a smidgeon of competence.
Witness the regulation of atmospheric carbon dioxide emissions in the US, one of the world’s principal contributors to anthropogenic global warming. Elected leaders the world over are rightly concerned with climate change, and desperate to cut emissions over a relatively short time frame in order to limit warming to 1.5C over pre-industrial temperatures. As with many other complex policy areas, politicians look to experts and technocrats to formulate workable solutions, and implement them.
In the US, the task of regulating carbon emissions falls to the Environmental Protection Agency, or EPA. Only West Virginia, on behalf of itself and 18 other conservative-ruled states, has objected to EPA’s authority, and today had the Supreme Court rule in its favour. In a 6:3 judgement, the court’s conservative majority has declared that when it comes to anything big, new and shiny, the actions of federal agencies such as EPA are presumptively invalid unless Congress has specifically authorised them.
The problem, of course, is that Congress is so often unable or unwilling to make decisions on complex matters outwith its members’ expertise, hence the delegation of decision-making detail to federal agencies. Everyone knows this, which further exposes the cynicism of climate-sceptical entities such as the State of West Virginia, home to much of North America’s coal industry.
The “major questions doctrine” underpinning the court majority’s argument is given short shrift in a dissenting opinion by justice Elena Kagan…
“The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards… The Court appoints itself - instead of Congress or the expert agency - the decisionmaker on climate policy. I cannot think of many things more frightening.”
So where do we go from here? Congress is pretty impotent at present. Short of an act of creative genius on the part of president Joe Biden, I cannot see any tangible response to today’s Supreme Court ruling. Still giddy with excitement in their victory over American women on reproductive rights, the forces of reaction in the US cannot believe their luck right now.