In a highly anticipated but not unexpected 6-3 decision, the Supreme Court ruled on June 30, that the Obama administration’s Clean Power Planexceeded the U.S. Environmental Protection Agency’s authorityunder the Clean Air Act.

The ruling doesn’t take away the EPA’s power to regulate carbon emissions from power plants, but it makes federal action harder by requiring the agency to show that Congress has charged it to act—in an area whereCongress has consistently failed to act.

The Clean Power Plan, the policy at the heart of the ruling, never took effect because the court blocked it in 2016, and the EPA now plans to develop a new policy instead. Nonetheless, the court went out of its way to strike it down in this case and reject the agency’s interpretation of what the Clean Air Act permitted.

Having said what the EPA cannot do, the court gave no guidance on what the agency can do about this urgent problem. Beyond climate policy, the ruling poses serious questions about how the court will view other regulatory programs.

Remaking the electricity sector

The Clean Power Plan would have set targets for each state to reduce carbon dioxide emissions from electric power plants. Utilities couldmeet these targetsby improving efficiency at existing coal-fired power plants and by “generation shifting,” producing more power from natural gas and renewable sources like wind and solar.

In the EPA’s view, this sector-wide shift to cleaner sources represented the “best system of emission reduction,” a statutory term in the 1970 Clean Air Act. Coal companies and Republican-led states contended that the changes the agency envisioned exceeded its authority.

Chief Justice John Roberts framed the issue as a “major question,” a doctrine that the courthas invoked in only a handful of cases. It holds that agencies may not regulate on questions of “vast economic or political significance”without clear directions from Congress.

In the most prominent example, in 2000 the court invalidated the Food and Drug Administration’s尝试调节烟草. The ruling held that this had never been part of the agency’s mission, no law gave the FDA clear authority over tobacco, and Congress had not directed the FDA to take such action.

The major question doctrine builds on a more established but increasingly disfavored principle of administrative law,Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. In my view, however, the Supreme Court is using the major question doctrine to take on authority to decide what Congress meant, without regard to the agency’s expert views or policy judgments.

对EPA的谴责

In one sense, the majority opinion is fairly narrow. As Roberts writes: “[T]he only interpretive question before us, and the only one we answer, is … whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority” of section 111 (d) of the Clean Air Act.”

大多数的答案是否定的。

Citing its ruling in a2014 air pollution case, the court said that the EPA’s interpretation of “best system of emission reduction” amounted to a “claim to discover in a long-extant statute an unheralded power” representing a “transformative expansion in its regulatory authority.” Essentially, the majority found that the EPA had proposed a sweeping national makeover of the electric power industry.

Roberts characterized section 111 (d) as a “backwater” provision of the Clean Air Act that had never been used to adopt a rule as broad and with such “vast economic and political consequences” as the Clean Power Plan.

Although West Virginia and the others who sued argued that the EPA had no authority to regulate emissions “beyond the fenceline” of individual plants, the Court did not constrain the agency that tightly. Roberts also noted that the EPA’s authority was not limited to plant-specific technological controls. This suggests that the court is leaving the door open for some regulation beyond the fenceline.

在漫长而尖刻的异议,正义Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, argued that the text, context, history and purpose of the Clean Air Act, as well as common sense and the scientific imperative of dealing with climate change, supported the EPA’s position. “The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening,” Kagan concluded.

Putting regulators on notice

EPA现在可以做什么？它的选项似乎有限。该机构可以要求现有的燃煤工厂更有效地运营，但这将延长工厂的使用寿命，对附近社区的负面影响pollutants that the plants emit.

Theoretically, the EPA could require every coal-fired power plant to install carbon capture and storage technology. This is the kind of technological control that the agency has long required for air pollution sources. But the costs, especially for retrofitting existing plants, are prohibitive, and utilities would surely challenge the technology as not “adequately demonstrated,” as required by section 111 (d).

另一种选择是需要改造燃煤电厂才能与天然气共同开火，将这些燃料的混合物燃烧为some plants already do. But relying on natural gas brings its own problems, includingmethane leaks from wells and pipelines. Methane is a potent greenhouse gas and a短期气候变暖的主要驱动力.

Market conditions are shifting electricity production away from coal and toward cleaner, more cost-effective sources like wind and solar. Indeed, the Clean Power Plan’s original goal of reducing the electric power sector’s carbon emissions by到2030年，2005年水平低于2005年的32％hasalready been exceeded. But this transition is not moving as quickly asclimate science suggests is necessaryto avoid catastrophic impacts from warming.

Broader impacts

Beyond climate policy, I expect this ruling to affect how the EPA and other regulatory agencies interpret laws that have been on the books for many years. Regulators may shy away from advancing policies that the court could view as marked departures from past interpretations and actions with big economic and political consequences.

For example, the Securities and Exchange Commission recently proposed a new rule to require publicly traded companies toprovide more robust disclosureof the financial risks that climate change poses to their balance sheets. The agency is also moving to more vigorouslypolice greenwashing由声称致力于净零碳未来的公司。

In my view, it is clear that the U.S. has entered a new era of administrative law, with an activist court asserting its power to curtail what it perceives as the excesses of regulatory agencies–and not always waiting for those agencies to complete their work.

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Patrick Patenteau is a professor of law at the Vermont Law School. This article was originally published at谈话.