Niina H. Farah, E&E News reporter Energywire: Monday, December 9, 2019
About the non delegation doctrine:
A recent opinion by Justice Brett Kavanaugh could be a sign the Supreme Court will consider the scope of authority Congress delegates to federal agencies.
How much authority should federal agencies have in shaping regulations like the Clean Power Plan, and how much of that work should fall to Congress instead?
Some legal experts say that question could become a focus for the Supreme Court’s conservative majority now that Justice Brett Kavanaugh has signaled interest in reconsidering the scope of agency powers (Greenwire, Nov. 25).
Court watchers say Kavanaugh’s addition to the bench could open the door to a revival of the long-dormant nondelegation doctrine, which prevents Congress from handing off policy decisions to federal agencies.
The return of the doctrine, which the court has not used to scrap an agency rule since 1935, could pose a threat to greenhouse gas regulations, said UCLA law professor Ann Carlson.
“The basic idea is that if Congress hasn’t specifically addressed a question, then for an agency to take up that question and regulate on it — particularly when there has been a relatively large passage of time since Congress spoke — it shouldn’t and can’t do so, at least in expansive ways,” Carlson said.
Litigation over the repeal and replacement of the Clean Power Plan could test conservative interest in bringing the nondelegation doctrine back into play.
Critics of the Obama-era Clean Power Plan have argued that EPA overstepped its authority when it drafted a rule to systematically slash emissions from power plants. Under President Trump, the agency has ushered in the less-stringent Affordable Clean Energy rule and has asked a lower court to find that the 2015 regulation was not allowable under the Clean Air Act (Energywire, Nov. 5).
Although the Supreme Court can only take a small number of cases each term, observers largely anticipate that the justices will eventually weigh in on the issue.
If it does, Kavanaugh last month offered a fresh piece of evidence that the justices may be open to limiting the authority of federal agencies like EPA.
The newest member of the Supreme Court wrote that while he agreed with his colleagues’ decision not to take up a recent petition centered on nondelegation claims, Justice Neil Gorsuch’s “scholarly analysis” in a related case “raised important points that may warrant consideration” in the future.
That case, Gundy v. United States, went to argument before Kavanaugh was confirmed to the court.
Carlson noted that the three other members of the Supreme Court’s conservative wing — Justices Samuel Alito and Clarence Thomas and Chief Justice John Roberts — have all signaled interest in considering nondelegation claims (Greenwire, June 20).
“That suggests now that there are five justices who want to revive the nondelegation doctrine,” Carlson said. “That could have profound consequences for agencies, but how profound really depends on the actual decision being rendered on nondelegation grounds.”
Jonathan Adler, an environmental law professor at Case Western Reserve University, also said Kavanaugh’s opinion was significant because it suggested support for reviewing the scope and authority of agencies.
“I think the majority on the court is wary of agencies having too much discretion or too much ability to make broad policy choices, but precisely how that is going to manifest itself is something we’re going to have to see,” Adler said.
Enter the Clean Power Plan:
As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh favored a very narrow reading of the landmark 2007 climate case Massachusetts v. EPA, which paved the way for Obama’s EPA to draft the Clean Power Plan and other climate rules, Carlson said.
“I think it’s safe to predict that had he been on the court at the time, he would have ruled against Massachusetts” and other states that called on EPA to regulate emissions, she said.
And the money shot:
Well before Kavanaugh weighed in on the nondelegation doctrine, EPA would still have had a hard time placing “meaningful limitations” on greenhouse gas emissions without climate legislation, Adler said.
The Supreme Court in the 2014 case Utility Air Regulatory Group v. EPA “made that clear that most of the relevant portions of the Clean Air Act are not written in ways that easily apply to greenhouse gases, and the Supreme Court made clear in UARG that EPA couldn’t try to ignore that in developing regulations,” Adler said.