The court and the E.P.A., yet again


The Supreme Court has another chance to reduce the authority of the Environmental Protection Agency when it hears a challenge to its regulatory authority on Feb. 21.

Last year, the court sidelined the E.P.A.’s authority to regulate water quality when, in Sackett v. E.P.A., five conservative justices ruled that the E.P.A. could not regulate wetlands that connect to “traditional interstate navigable waters.” Justice Samuel Alito argued in the majority opinion that these include wetlands, lakes, ponds, and many other bodies of water that may be found on the Vineyard. Disagreeing Justice Brett Kavanaugh wrote that “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

The year before that, in West Virginia v. E.P.A., six conservative justices held that the E.P.A. lacked authority to regulate greenhouse gas emissions from power plants. Writing for the court, Chief Justice John Roberts noted that only Congress is empowered to issue such regulations when it is “a major question.” The reduction of greenhouse gases, he wrote, would require the restructuring of the entire energy market, a major question. Roberts, in one fell stroke, articulated for the first time a whole new concept, known as “the major questions doctrine.” It had never existed before his opinion.

Many politicians have long believed that the federal agencies, consisting of unelected experts like those in the E.P.A., have seized authority from the courts and Congress. Both decisions contributed to the goal of their attempt to undermine the so-called administrative state, which they refer to as the “deep state.”

Last October, in these pages, I wrote of how the court may well end the ability of federal agency personnel to exercise their “reasonable” judgment when implementing federal law, or narrow their ability to do so. When Congress passes a law, the measure often lacks specificity. And legislators cannot predict how it should be used in the future, as change occurs. However, agency personnel, who are empowered to write the regulations to enforce the law, are expert in their field, such as the scientists at the E.P.A. Many people may object to their decisions, which may not always be accurate, but they are far better than relying on legislators or judges for answers to highly technical questions.

Now the justices have yet another opportunity to curtail how the E.P.A. operates. This time the issue focuses on what is known as the “good neighbor” rule, to control pollution. Under the Clean Air Act, the E.P.A. sets national air quality standards, especially on environmentally polluting emissions like ozone. The agency can force a state to protect a nearby downwind state from its production of ozone when pollutants cross state lines.

The good neighbor rule requires the E.P.A. to require a polluting state to fix the problem, but if the state plan is inadequate, the E.P.A. will design a federal plan. Three states — Ohio, Indiana, and West Virginia — along with companies like U.S. Steel and some trade associations are asking the court to halt the federal plan. (Massachusetts is not, by the way downwind from any polluting state.)

The challengers claim implementing the plan is too expensive, and will have a negative impact on the electric grid. So far, the Supreme Court has denied the petitioners’ request to stop the E.P.A. from acting, but is willing to hear their argument in court, even though the case is also currently before the D.C. Circuit Court of Appeals.

The main question before the Supreme Court is “whether the emissions controls imposed by the [Good Neighbor] Rule are reasonable regardless of the number of states subject to the Rule.” If a majority of the justices decide that the E.P.A. plan is too expensive or too onerous, they could halt the plan while the D.C. Circuit hears full arguments. This is known as a stay, that is, a temporary halt on the E.P.A.

On the other hand, if a majority rules that the E.P.A. has overstepped its authority, as in the past two years, the justices may simply end the good neighbor rule. Pollutants like ozone have a negative effect on those with asthma, and other respiratory conditions like bronchitis and emphysema. We may know more after Feb. 21.


Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his “The Supreme Court and Constitutional Law.”


  1. EPA with a relatively modest charter has become too powerful. It is now claiming unrestrained authority with regulations that have major negative consequences for the American economy with little or no accountability to Congress. It is about usurping the authority of Congress to make law. Whatever the EPA proclaims is within its orbit can be debated in Congress. It should be one of our top priorities to reassert Congress as the originator of laws and reestablish congressional accountability for regulations issued by federal agencies.

    • The Trump had four years to eviscerate the EPA.
      What happened?
      Was he a weak leader?
      Or was he just to focused on completing the Trump Wall .

  2. Andy— Have you ever heard of Toms River N.J ?
    Your buddies in the chemical industry dumped millions
    of gallons of highly toxic waste products into the sandy
    soil of N.J in the 60’s and 70’s before a relatively weak
    EPA started to regulate
    such egregious practices. The hundreds of childhood
    cancers and deaths that resulted from that practice
    are still ongoing to this day. And Just in case you are curious
    about it, many of those childhood cancers started in the womb.
    There is more to our society than profit for business.
    If it were up to you, most rivers in this country would
    occasionally catch on fire, and we wouldn’t be able to
    see the windmills through the smog.

  3. Was the EPA restrained from 2017 through 2021?
    Did the Republican Congress reestablish congressional accountability for regulations issued by federal agencies?
    Who has the leadership qualities to squash the EPA?
    Does he need four more years to get the job done?

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