After Supreme Court’s mercury decision, what now for environmental law?
The victory for the court’s conservative wing has been overshadowed by the decision’s future policy implications. In August, the EPA is set to finalize regulations on greenhouse gas emissions known by the Obama administration as the Clean Power Plan. Those regulations have been a political touch-point for years and some critics believe that, as a matter of administrative law, the Michigan decision portends difficulty for those forthcoming rules.
Michigan-based legal challenges to those rules will be filed almost immediately by states like West Virginia, which stand to lose if the rules are imposed. Those states will be emboldened by the court’s decision in Michigan v. EPA because, while narrow, it could signal a new skepticism toward interpretive autonomy.
Twice in this term, the Supreme Court demonstrated willingness to circumscribe the authority of federal regulators. Notably, it did so both under a heightened standard of deference for agency activity, known as “Chevron deference,” as in this case, and in cases in which Chevron does not apply, such as King v. Burwell.
The trend toward narrowing agencies’ interpretive flexibility could be particularly pronounced in the context of environmental regulation because, as drafted, environmental laws like the Clean Air Act tend to be relatively imprecise. Hostile attorneys could revel in the statutes’ ambiguity as they draft challenges.
In 2007, the court’s majority held in Massachusetts v. EPA that the EPA has the authority to, and must, regulate greenhouse gas emissions and other toxic air pollutants like mercury. Since then, the EPA has acted to do just that under authority granted by the Clean Air Act. The Michigan decision did not dispute the ability of the EPA regulate mercury emissions. Instead, like the King decision, it focused on the process and judgment used by an agency as it interprets its enabling authority. New challenges are likely to test the authority and scope of federal environmental regulatory power constitutionally.
Law professor Jonathan Adler of Case Western Reserve Law School believes that federal environmental regulation is vulnerable to constitutional challenge in light of Chief Justice John Roberts’ famous opinion in the first Obamacare case, NFIB v. Sebelius.
Though NFIB was a case about how the Commerce Clause interacts with the Affordable Care Act’s individual mandate, the decision ultimately propounded a universal principle. A seven-justice majority held that the federal government had unconstitutionally attempted to coerce states into expanding their Medicaid eligibility by threatening to cut off all funding if they did not. Adler’s theory is that the interpretation crafted by Chief Justice Roberts could be applied to the conditional spending requirements present in legislation like the Clean Air Act:
“…[T]he Clean Air Act conditions the receipt of money for one program (highway construction) on compliance with conditions tied to a separate program (air pollution control). This may be problematic because a majority of the Court thought Congress was trying to leverage state reliance on funding for one program (traditional Medicaid) to induce participation in another program (the Medicaid expansion).”
Were such an interpretation adopted by the court, the EPA would be unable to implement and oversee various environmental standards. Areas of environmental regulation reserved to the federal government for decades could be returned to the states. It would be for them to act on their own.
Practically speaking, the benefits of environmental federalism could be great. States are closer to and better understand many of the local and regional environmental challenges they face. States also are at once better positioned to do good and less likely to do harm; the latter being a specialty of federal regulation. But if control over environmental regulation is bound again for statehouses, either as a result of federal regulatory limitation or constitutional necessity, the need for states to be prepared is growing.
Michigan v. EPA is not a momentous decision, but associated challenges to the federal environmental project could prove to be.