Recently I wrote about how the Biden Administration’s efforts to fight climate change could be sailing into rough waters after passing the Infrastructure Bill.  Those obstacles will take many forms, but the most dangerous might be from the U.S Supreme Court.

The threat to Biden, and the ability of future administrations to deal with climate change could come from the so-called “nondelegation” doctrine. This is a legal view that says the U.S. Constitution forbids Congress from delegating important policy decisions to another person or institution – including agencies like the EPA. It is a sharp contrast with how regulatory policy currently works.

For decades, it has been the job of Congress to pass a law that lays out a broad policy and then delegate to a federal agency to implement the policy by issuing and enforcing regulations.

Under nondelegation that would be changed. In this new system, Congress would have to detail what specific regulations are to be implemented and any changes would need to be passed into law. So, if the government wanted power plants to cut carbon emissions, by say 3 percent, instead of the EPA promulgating new regulations under authority from the Clean Air Act, Congress would have to enact a new law.

One could see how regulatory matters could then become caught up in continual political infighting over even the slightest changes. Given how Congress has recently been functioning on the issue of climate, the thought of having to having to pass a law for every regulatory change should alarm those who want action taken on cutting carbon emissions.

Back to the future

While nondelegation has not been a hot topic since the 1930’s, when it was used to strike down regulations on the poultry industry and made the Roosevelt Administration’s National Industrial Recovery Act unconstitutional, is experiencing a revival.

An October 2020 analysis published in the NYU Law Journal by Georgetown Law professor Lisa Heinzerling found that a majority on the court – Gorsuch, Thomas, Alito, Roberts and Brett Kavanaugh, have shown support for applying the nondelegation doctrine to weaken regulations or strip agencies of their power. The addition of Justice Coney Barrett has some advocates worried that she may be another supporter of this legal doctrine.

One place where we could see if the court is willing to implement a ruling based on the nondelegation doctrine comes from the case of West Virginia v. EPA.  This case, which is currently before the court, looks at President Obama’s Clean Power Plan, and whether it is authorized by the Clean Air Act.

A nondelegation-based ruling could go beyond just deciding the constitutionality of President Obama’s action. The court could take away the EPA’s entire power to regulate carbon emissions under the Clean Air Act.  Such an outcome would cripple the White House’s ability to act on climate change until Congress passed an economy-wide law.

Slowly but surely?

Could this happen?  This spring, would the Supreme Court just strip entire agencies of their powers in one fell swoop?

There is always this chance, but in the past, on issues like desegregation and privacy, the court has shown it acts slowly but deliberately.  So instead of going as far as nondelegation supporters would like this time, it is likely the court could issue a series of decisions over the next few years that progressively strip away the power of agencies and regulators.  While this would take time, it appears we will have a conservative majority for at least the next decade, so such a strategy could end up being executed.

The thought of this happening should alert current and future administrations who want to act on climate change that rough legal waters lie ahead. It may also signal that action outside of the constraints of the political sphere could be more important than ever to addressing the climate crisis.