An emboldened supermajority prepares to gut the Clean Air Act's restrictions on greenhouse gasses.
is over what counts as a “best system of emission reduction.” Obama’s EPA read the term broadly to encompass both direct limits on power plants and broader strategies to bring down overall emissions. A cap-and-trade program, for instance, doesn’t make every power plant cleaner, but it does reduce net carbon production. Increasing energy generation from renewables while decreasing generation from fossil fuels—an approach called “generation shifting”—achieves the same goal.
Most, if not all, of the conservative justices appear happy to oblige. During oral arguments, they deployed four fabricated “doctrines” or “canons” to replace the Clean Air Act’s text with a far narrower mandate. First, there’s the “clear statement rule”—the notion that, as Justice Brett Kavanaugh put it, “Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance.” What qualifies as “vast economic and political significance”? No one knows.
, which holds that Congress acts unconstitutionally when it delegates too much power to an agency. Finally, just for good measure, there’s the “federalism canon,” which bars agencies from issuing regulations that “upend” the “federal-state balance of power.”Each of these rules was invented by conservative lawyers for the purpose of striking down regulations, even when they are authorized by Congress.
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