How upcoming SCOTUS climate ruling could disappoint Washington – Low Calorie Diets Tips

That has implications for other important rules that President Joe Biden’s authorities are writing or defending in court, including wetland protection, limiting pollution from cars and trucks, Obamacare birth control insurance coverage, and even attempts by the Trump administration to lower drug prices.

“A narrow interpretation of what federal agencies can do will literally prevent the federal government from taking action to protect the health and environment of Americans,” said Lawrence Gostin, professor of public health law at Georgetown University.

Climate change and “big questions”

The immediate stakes in the EPA case alone are big enough: Two coal companies and a phalanx of Republican-run states want the court to limit the agency’s ability to regulate greenhouse gases from power plants, a key driver of the threat of global warming—floods, droughts, disease and other disasters will worsen in the coming decades.

The origins of the case are messy and complicated, and involve a sweeping Obama-era climate rule for power plants and efforts by the Trump administration to replace it with a much stricter rule. The original rule had attempted to push the electricity industry away from fossil fuels and toward greener sources like wind and solar, exercising the EPA’s powers under a rarely used section of the 1970 Clean Air Act. Under Biden, the EPA began writing its own version of the rule.

Legal experts on both sides of the issue widely expect the court to side with conservatives in saying the Obama-era EPA went too far. But the big mystery is whether the majority of the court is willing to make it big — and open the door to legal action against the executive branch.

At the core of the debate is the so-called “big questions doctrine” – the idea, debated by judges for the last two decades, that executive action with “tremendous economic or political importance” should face a particularly high hurdle to enforcing it Courts to win ‘ approval. In these cases, the authorities need the express approval of Congress for the actions they take.

Some conservative judges have embraced an even more aggressive doctrine known as “non-delegation,” which would prohibit Congress from even delegating major decisions to authorities. That could throw a huge legal cloud over landmark legislation enacted over the past several decades, including the Clean Air Act.

It’s unclear whether the court is willing to go that far in the EPA’s case — it could simply smash the agency’s climate board on narrower grounds and postpone the larger regulatory dispute until later.

But some groups siding with the Red States want judges to use this case to draw a clear line for both regulators and Congress.

“Congress has not — and under our Constitution can not — to grant unelected officials EPA legislative authority to creatively reinvent energy policy for the entire country,” the anti-regulatory Americans for Prosperity Foundation wrote in a brief filed in the EPA case.

The courts have never clearly defined the boundary between the legislative and executive branches. But they have repeatedly invoked the “big questions” principle to quash executive branch actions they felt went too far.

In an early high-profile case, the Supreme Court ruled in 2000 that the Food and Drug Administration did not have the authority to regulate most tobacco products. (Congress overruled that ruling in 2009 by passing legislation giving the FDA clear authority over tobacco, but such a bipartisan agreement is unlikely in the current political climate.)

The issue also surfaced in the 2015 court ruling that upheld Obamacare’s FX markets — even though the Obama administration won that case.

Biden’s Covid actions – and beyond?

Judges’ application of the Top Questions doctrine has surged over the past year, particularly as the Biden administration has relied on long-established laws to respond to threats like Covid-19.

In August, the Supreme Court sided with real estate agents who challenged the Centers for Disease Control and Prevention’s pandemic-inspired moratorium on evictions, arguing that Congress failed to give the public health agency the authority to regulate housing policy.

In January, the court barred the Occupational Safety and Health Administration from requiring Covid vaccinations or testing for workers in companies with 100 or more employers, a mandate that would have covered about 84 million people. That decision did not specifically cite the doctrine of the Principal Questions, although Justice Neil Gorsuch did in an affirmation joined by Clarence Thomas and Samuel Alito.

A federal judge in Florida last year cited the top-issue doctrine when he lifted the CDC’s Covid-related restrictions on Florida cruises, which he described as a “stunning” extension of authority. More recently, in April, a judge cited doctrine to overturn a federal mandate for travel masks. The Biden administration is appealing this ruling.

On the other hand, a federal judge said in December the doctrine was “not applicable” to the military in a challenge to a Covid vaccine mandate, in part because military personnel are already required to receive a litany of other vaccines.

Opponents of state regulations have raised the Key Issues doctrine to attack other regulations, including an EPA rule on air pollution that oil and biofuel groups say is an attempt to encourage electric cars. The Securities and Exchange Commission is also expected to legally challenge its recent proposal to require companies to disclose their climate-related risks to investors — a mandate critics say the SEC has no congressional authority to impose.

Agencies need flexibility to respond to new threats, argued Georgetown’s Gostin. For this reason, many laws contain perpetual provisions that give agencies a degree of authority to act when Congress has not specifically requested it.

“When Congress gave powers to the Food and Drug Administration, the EPA, or the CDC, it did so many, many decades ago — and it could not possibly have foreseen all of the dangers that the American public would face,” he said.

Lisa Heinzerling, a Georgetown University law professor and Obama-era EPA official, noted that while Congress is deadlocked, the principal questions doctrine is gaining popularity among judges. That means it would be difficult, if not impossible, to pass new laws to address new threats.

“They’re introducing these new principles at precisely the moment when they’re most damaging, which is when we’re relying on long-established laws to do much of the work to solve our problems,” Heinzerling said.

Katy O’Donnell and John Hendel contributed to this report.

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