It’s bad. And we knew it was coming.
I’m outsourcing this issue to the environment writer I respect the most, David Roberts:
All right, I’m just getting to my computer & reading around, but it sounds like the SCOTUS EPA ruling is about as good (“good”) as could have been hoped for. EPA authority over CO2 remains intact. Regulations just have to be “inside the fenceline.” Of the options that’s about the narrowest one that was on the table.
Nonetheless, it’s worth emphasizing: “major questions” doctrine, which Roberts leans on to strike down the (never-implemented) CPP, is bullshit. Utter Calvinball bullshit. Imagined into being. Rectally extracted.
Kagan’s dissent makes the point fiercely: Congress has been delegating “big” things to agencies from the time of the nation’s founding. There’s no hint in the constitution or in history that it intended to confine agencies to “minor” questions. It’s absolutely made up.
The vagueness of “major questions” is the point: it allows conservative judges to rule against any program they don’t like. There’s no test for major, no metric, no definition — it’s just old-conservative-guy vibes. “Eh … feels major.”
Needless to say, the court’s radicals (as evidenced in their concurrence) are champing at this bit to apply this vibes-based test to all kinds of other agency actions. The doctrine itself may end up doing huge damage. But on this case, at least, it could have been much worse.
BTW, if you want more on the legal background and the questions at play, listen to this pod:
https://www.volts.wtf/p/volts-podcast-jack-lienke-and-kirti#details
OK, a couple of notes. In my OP, I said SCOTUS ruled against all “outside-the-fenceline” regs. That’s not quite right. The truth is more complicated & technical & ill-suited for a tweet — suffice to say, EPA still has a little room to maneuver here.
More generally: this is almost too obvious to be worth saying, but it’s rich for conservatives to cry “that’s a job for Congress!” even as gerrymandering, the rural bias of the Senate, & the filibuster have empowered them to render Congress useless.
They are pretending to favor the popular will (not, gasp, “bureaucrats”), but at the same time they have effectively insulated Congress from the popular will & handed it over to minority control. It’s all a fucking game meant to make governing impossible.
Oh! Final final note: the vagueness of the decision — the utter obscurity of what regs Roberts will deem acceptable — ensures more lawsuits. *Whatever* EPA comes up w/ will be delayed, dragged back into court, and very possibly Calviball’d all over again, wasting years.
Kagan very specifically called out the majority’s Calvinball:
Originally tweeted by David Roberts (@drvolts) on June 30, 2022.