A Supreme Court decision not going your way isn’t the end of the world. Or is it? On Thursday, six out of nine U.S. Supreme Court justices issued an opinion in the case West Virginia v. Environmental Protection Agency (EPA) saying that the Clean Air Act does not give the EPA sweeping unilateral power to regulate greenhouse gas emissions from power plants.
Instead, such a sweeping program would have to be explicitly authorized by Congress, said Chief Justice John Roberts in a majority opinion.
The history of the case, as Reason‘s Ron Bailey sketches out here, is long and complicated. It stretches back to 2015, when the Obama administration’s EPA issued its Clean Power Plan, which would establish cap-and-trade markets for greenhouse gas emissions in each state. The regulations would have phased out coal-generated power plants over time.
The Clean Power Plan proved immediately controversial. The Supreme Court paused its implementation in 2016. Former President Donald Trump tried to replace it with more limited rules during his tenure—a move that was also shot down by the courts.
The Biden administration attempted to revive the Clean Power Plan. The court’s decision yesterday puts an end to that effort.
Writing in The Washington Post, conservative commentator George Will argues the decision was a win for separation of powers that might put some outer bounds on executive authority and encourage Congress to resume its role of actually legislating.
“If, as is desirable, the decision presages similar ones, they could, cumulatively, revive Congress by compelling it to resume its proper responsibilities,” writes Will. “This would limit the excessive autonomy currently enjoyed by the executive agencies that are the increasingly autonomous, unleashed and unaccountable administrative state.”
Lawmakers themselves who supported the Clean Power Plan have taken a somewhat dimmer view of the decision.
Our planet is on fire, and this extremist Supreme Court has destroyed the federal government’s ability to fight back.
This radical Supreme Court is increasingly facing a legitimacy crisis, and we can’t let them have the last word.
— Elizabeth Warren (@SenWarren) June 30, 2022
Fascist SCOTUS guts the EPA’s ability to regulate carbon emissions, fight climate change.
The federal government will be restricted from regulating anything of significance in the absence of a clear Congressional directive to do so. https://t.co/zwxyKii9P6
— Rashida Tlaib (@RashidaTlaib) June 30, 2022
The commentariat was no less restrained.
Undoing Roe is awful. Kneecapping environmental regulation is existential. This Supreme Court has just come down on the side of civilizational collapse.
— Paul Krugman (@paulkrugman) June 30, 2022
Minority rule in the United States is a threat to life on earth
— Kate Aronoff (@KateAronoff) June 30, 2022
Run out of words to describe this court, but, among other things, it’s now a threat to the planet.
— Chris Hayes (@chrislhayes) June 30, 2022
Dear Supreme Court,
Thanks for nothing.
– Planet Earth— Dan Rather (@DanRather) June 30, 2022
Writing over at MSNBC’s ReidOut Blog one day before the decision, Ja’han Jones suggests that a loss in the West Virginia case would end not just the Clean Power Plan but “will likely threaten the very concept of a federal government.” (Don’t threaten me with a good time.)
The reaction, much like the planet, is overheated. Congress always retained the power to regulate carbon emissions as it sees fit. It’s a power Roberts even encourages it to use.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,'” wrote Roberts. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in [the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself.
The decision turns everything back over to the democratically elected branches of government to decide. It’s that decision that capital-D Democrats are so incensed by.
FREE MINDS
Four people are suing Washington, D.C., and its police chief over the city’s ban on carrying firearms on public buses and trains. The lawsuit, filed by three D.C. residents and one Virginia resident, argues that the restriction isn’t justified by the country’s history or any significant government regulation.
DCist has the story:
“There is not a tradition or history of prohibitions of carrying firearms on public transportation vehicles,” reads the lawsuit, which was filed by George Lyon, a D.C.-based lawyer with Arsenal Attorneys who has filed multiple lawsuits in the past over the city’s restrictive gun laws. “Public transportation systems did not exist as they do today at the founding of the nation. However, there was plainly a tradition of firearms carry when citizens traveled from their homes. In modern parlance, Americans carried arms to prevent their gatherings from becoming soft targets.”
FREE MARKETS
Denver, Colorado, is implementing an affordable housing program today that will likely make housing less affordable over time. Starting today, developers in the Mile High City will have to offer between 8 and 15 percent of the homes they build in developments of 10 or more units at below-market rates or otherwise pay into an affordable housing fund.
In exchange for taking a haircut on those units, developers would be rewarded with reduced fees and minimum parking requirements.
These kinds of “inclusionary zoning” ordinances are common across the United States. Nearly 1,000 jurisdictions have adopted some of form of them.
Research has shown that they raise overall housing costs, as developers try to recuperate the cost of the mandated affordable units by raising rents on the market-rate ones. Portland, Oregon, and Portland, Maine’s inclusionary zoning ordinances are so strict that builders have largely stopped constructing regulated projects. Pittsburgh is being sued over its inclusionary zoning ordinance, with plaintiffs arguing it’s an unconstitutional taking.
The percentage of affordable units Denver requires, and the discounted rates they’ll have to be rented/sold at, is more generous to developers than what some cities have on the books. Denver’s mandate also comes with offsetting incentives that should make construction cheaper. On the other hand, its new ordinance applies to smaller projects than is typical.
Those details will determine how destructive Denver’s policy is for housing affordability and supply. That it will have some negative impact is almost certain.
QUICK HITS
• India is the latest country to crack down on single-use plastics.
• The nation’s professional fact-checkers have deemed Supreme Court Justice Clarence Thomas’ true statement that COVID-19 vaccines “were developed using cell lines derived from aborted children” as false. Thomas made that statement in an opinion criticizing the court for taking up a case involving religious exemptions to a New York vaccine mandate.
• The ultra-hot electric vehicle market has spawned a market of Tesla flippers, reports the Los Angeles Times.
• The latest Personal Consumption Expenditures data, an alternative measure of inflation preferred by the Federal Reserve, continue to show rising inflation.
• The U.S. Department of Transportation and its fearless leader, Pete Buttigieg, are launching a new Momentum initiative. The stated purpose is to spread the word to other countries about America’s decidedly mediocre transportation system. The implicit message is that it’s foreigners (not the Biden administration) that are responsible for supply chain hiccups. Regardless of one’s political affiliation, everyone should agree the announcement video is cringe.
Today, we’re launching Momentum, a new initiative to help countries around the world learn from our best practices and expertise in planning and modernizing transportation infrastructure. https://t.co/nDH1EJA2Jx pic.twitter.com/A585ZA0Qr0
— TransportationGov (@USDOT) June 27, 2022
• San Francisco voters will have an opportunity to approve a “vacant home” tax as an effort to address the city’s crushing housing affordability problems. The results of similar policies in other cities suggest it’s not going to do much good.
The post SCOTUS Said Ambitious Climate Regulations Need To Come From Congress. Lawmakers Are Furious. appeared first on Reason.com.
Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com