Should judges defer to federal agencies when it comes to how those agencies enact policy?
In a major case involving the EPA, the Supreme Court agreed and issued a landmark ruling severely limiting the EPA's ability to regulate carbon emissions.
Critics believe the Court's ruling reaches far beyond one agency's plans to address climate change.
The ruling could end up limiting the capacities of every single federal agency.
Today, On Point: The Supreme Court limits government, and grows its own power.
Paul DeCamp, former administrator and senior policy advisor at the Department of Labor’s Wage and Hour division in the George W. Bush administration. He’s currently a member of the law firm Epstein Becker & Green. (@PaulDeCamp)
Christopher Wright, former general counsel at the FCC in the Clinton Administration. He served in the Solicitor General’s Office in the Reagan and George H. W. Bush administrations. Today, he is a partner at the law firm Harris, Wiltshire & Grannis.
MEGHNA CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. Last week, in the culmination of an historic and revolutionary Supreme Court term, the court issued a sweeping opinion curtailing the Environmental Protection Agency's ability to issue regulations on climate change. Specifically, the court ruled that in crafting rules to reduce carbon emissions from U.S. power plants, the EPA had gone beyond its congressionally granted authority. West Virginia Attorney General Patrick Morrisey led the lawsuit against the EPA. And here he was on Fox News the day of the ruling.
ARCHIVAL TAPE: This is a huge victory for our American system of government. We've been arguing for many, many years – while everyone's been focusing on, the question of climate change, we've said one simple thing: that if you have a major issue of the day, Congress needs to be the decider, not an unelected bureaucracy. That's what today's decision means. It ensures that these unelected bureaucrats are not going to be seizing power across the board.
CHAKRABARTI: The next day, White House National Climate Advisor and former EPA Administrator Gina McCarthy was on MSNBC. She said the ruling does not completely hobble the EPA in its efforts to fight climate change. However:
ARCHIVAL TAPE: What it did was tell us that the Supreme Court is more interested in special interests that are being funded by the fossil fuel industry than they are in protecting public health and giving the agency the right and opportunity and obligation to actually keep our air clean and keep our water clean and to address the existential challenge of our time.
CHAKRABARTI: Well, today, we'll look at the ruling’s impact on the EPA and beyond – its impact on federal agencies across the board. And we'll start today with Christine Todd Whitman. She's the former governor of New Jersey and served as EPA administrator under President George W. Bush. Governor Whitman, welcome to On Point.
CHRISTINE TODD WHITMAN: Thanks for having me, Meghna.
CHAKRABARTI: So, first of all, tell us – how severely do you think the court's ruling does limit EPA's ability to regulate carbon emissions in the country?
WHITMAN: Well, you know, I think it's going to take years before we fully appreciate the enormous impact that this ruling is going to have, not just at EPA, but as you’ve mentioned before, across federal agencies: the FDA, how we regulate our food, how we make sure our drugs are safe. All this seems to be influenced by industry. And what was interesting to me – or ironic, I should say, by the quotes that you played from the attorney general of West Virginia – was that he said, you know, this is bureaucracy running wild. EPA would have far rather have the Congress act on climate change. In fact, there was all kinds of pressure running on back when I was head of the EPA, but Congress wouldn't act. That's the problem. Congress didn't act. So EPA had to start to move forward because its mandate from the Congress is pretty simple: Protect human health and the environment. And clearly climate change and what is being emitted from these power plants is affecting human health and the environment. It's that simple.
CHAKRABARTI: Can you tell us … in more detail about what you just said about when you were EPA administrator? There were already pressures on the EPA, but Congress wouldn't act. What specifically do you mean by that?
WHITMAN: Well, we wanted to – we felt that there was a real need to address the issue of climate change. And there was a lot of talk going on, not informal bills being put up, but for staff to staff with the Hill to deal with this issue. And they knew the issue was there. And I said it publicly, other people said it publicly, that it would be far better – EPA would prefer it if Congress acted because then it was the law. Any time EPA promulgates a regulation, it goes to court, and you see the kinds of things that can happen. It can go forward, it can go backwards. But it takes a long time. And particularly if you're trying to stop behavior that is imperiling human life and health, then you want to act. But it takes a long time … for these things to win their way through the courts, and the bad behavior is going on during all that time. And of course, the really unfortunate thing with many of these emitters – the big emitters, the power plants and stations – is they're located near low-income communities. These are the people that get impacted the most by some of the worst pollution. And that's why you see such disparities in health among the lower income population and the upper income population. I mean, it's bad on so many levels, and it does undermine. It won’t stop EPA from regulating. No, I mean, it can still go forward. But last I heard, when I was the EPA, there was one scientist in Congress. I don't believe there's a single one there now. And yet the court has said they're the ones who have to make scientific determinations on what's good to protect human health and the environment.
CHAKRABARTI: Well, so that's what Justice Kagan asserted in her dissent – that effectively the court was saying it possesses more expertise in EPA. But in the majority opinion, I'm seeing here that Chief Justice John Roberts really puts this back on Congress. I mean, he said specifically a decision of such magnitude made, namely the nationwide transition away from the use of coal-generated electricity. He said a decision of such magnitude and consequence rests with Congress itself or an agency acting pursuant to clear delegation from that representative body. It's the lack of clear delegation. Now, I take your point about how Congress wouldn't act, but the justices are sort of saying, well, they can't do anything about Congress not acting. They're simply reading, per the Constitution, the authority rests with Congress. So … how else could they rule?
WHITMAN: Well, except that that is ignoring entirely what Congress charged EPA with when they set it up was protecting human health and the environment. … And this is part of that purview, part of that responsibility. So, when Congress won't act, it is clearly up to the agency to do what Congress told it to do back in 1970, when it was first established. By the way, established and signed into law by a Republican president working with a Democratic Congress back in the days when people would talk to one another and work together. So I still think that from the perspective of the courts, it's fairly clear that really EPA has no choice but to act in these instances.
CHAKRABARTI: Right. And in fact, the court, as you will know, Governor Whitman, even asserted as much in the case back in 2007 that that sort of led to this point. Right? That was the Massachusetts v. EPA case that in 2007, the Supreme Court ruled that carbon dioxide is a pollutant under the Clean Air Act. That's what this was – a ruling that came from the Supreme Court. And they directed – the high court directed the EPA to regulate it. And that's what gave birth to the Clean Power Plan, which was what West Virginia sued.
CHAKRABARTI: So – Go ahead, Governor Whitman.
WHITMAN: There's this jerking – back and forth and back and forth – and the willingness of this court to undo precedent. It would seem I mean, to the outside world, frankly, to me, it looks as if it's pursuing a very political agenda rather than one based on the case law in front of them and precedent, the way the court used to do it. And there's – it's an activist court. It's reaching for those cases that will allow it to move forward on a very conservative agenda. And that's not the way the court is supposed to behave.
CHAKRABARTI: Hmm. Well, Governor Whitman, stand by here for just a second because I want to bring Lisa Graves into the conversation. She joins us from Superior, Wisconsin. She's executive director of the progressive watchdog group True North. Research, was also formerly in the Justice Department as well. Lisa Graves, welcome to you.
LISA GRAVES: Thank you so much for having me on.
CHAKRABARTI: So, first of all, tell me. You just heard Governor Whitman and also in a sense, former EPA administrator Gina McCarthy in the clip that we played – both say that while this is a major ruling regarding EPA's ability to regulate carbon emissions, it's not a complete death knell. And I wonder what you make of that.
GRAVES: Well, I think it's severely harming the EPA's ability and our ability in America, through our federal agencies, to regulate and address the most pressing crisis humankind has ever faced. And so, I think in the dissent, Justice Kagan was really spot on in her description of the implications of this decision. It doesn't mean that there's nothing the EPA could do. But the EPA was given a mandate by Congress to help ensure that these power plants had the best emissions systems possible. And that included the EPA's determination that … that would include alternative energy sources. Of course, that's what's necessary to have the best emission systems possible. But this court, this faction that now controls the court, has put its thumb on the scale of justice to stop the EPA from doing the most common sense and reasonable efforts to try to mitigate climate change. And so it really is severely damaging of our ability to address this issue. And I think it affects not only the power within the United States, but also America's power in the world.
CHAKRABARTI: Yeah. So, to me, one of the key questions here is both where does the expertise and authority lie? It seems as if the justices are saying, and I'll just come back to this again, again, because it's their core argument in the majority that the authority fundamentally lies with Congress. First of all, just do you agree with that or not, Lisa?
GRAVES: Well, Congress has the power to delegate those authorities, and it has done so for decades. And so there's no doubt that Congress has the original authority. But Congress has expressly given the EPA the authority to rule in this area to address this pressing crisis. So it's not – I think that in some ways, Justice Roberts’ opinion is a bit of sleight of hand, because that's not really the question. The question is whether having delegated that power, [does] this agency ha[ve] the power to enact reasonable regulations? And it certainly does. And in past years, for decades now under the Chevron doctrine, those sorts of regulations would be deferred to because the agency has expertise that Congress doesn't have, as the governor mentioned.
CHAKRABARTI: Hmm. Well, we've got about a minute before our first break. Governor Whitman, let's expand our view here a little bit. I mean, you having been, you know, an EPA administrator, do you look across other agencies in the federal government now and see this ruling as potentially having an impact on them?
WHITMAN: Absolutely. If you follow the logic and the argument and the majority opinion there, it could easily be applied to the FDA and how we oversee the testing of drugs and getting them out to the population. The same thing with … the testing of food to make sure it's safe. These are all things that could be impacted by this ruling. That's why I say it's going to take quite a while for people to fully appreciate just how far reaching this decision is and the kind of impact it can have. And frankly, it's not good, in my opinion. It's not good for the country. It's not good for the future of the country. And I couldn't agree more that it's also severely impacting our ability to work internationally because the rest of the world has taken this seriously for a long time, and now we're walking away from it. Interesting excuse for those who also want to walk away from it. And we see the damage that climate change is doing.
CHAKRABARTI: Well, Governor Whitman, stand by here for a moment. And Lisa Graves as well. We're talking today about the Supreme Court's ruling last week in West Virginia v. EPA and really asking what impact will it have across the board in federal agencies? This is On Point.
CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti, and today we're talking about the impact that the Supreme Court's ruling last week in West Virginia v. EPA could actually have on federal agencies across the board. West Virginia Attorney General Patrick Morrisey told Fox News that he thinks the ruling and others expected to come are in fact about more than the EPA, that the larger goal is the weakening of the so-called administrative state regulatory bodies throughout government: everything from, say, the FCC to the departments of Health, Labor, Commerce, Homeland Security. Here's Morrisey:
ARCHIVAL TAPE: Today, it matters with respect to stopping the EPA's power grab. Tomorrow, it could impact what goes on at the Securities and Exchange Commission and other federal agencies.
CHAKRABARTI: I'm joined today by Christine Todd Whitman. She is the former governor of New Jersey and served as EPA administrator under President George W Bush. Lisa Graves is also with us. She's executive director of the progressive group True North Research. And I'd like to bring in a couple of other voices here to talk about their views as former administrators or members of various agencies about the impact that West Virginia v. EPA might have beyond the EPA itself. So, here's Paul DeCamp, and he joins us from Washington. He's a former administrator and senior policy advisor at the Department of Labor's Wage and Hour Division. He served in that position in the George W. Bush administration. He's currently a member of the law firm Epstein, Becker and Green. Paul DeCamp, welcome to you.
PAUL DeCAMP: Thanks for having me, Meghna.
CHAKRABARTI: So, same first question to you, from your experience in the Labor Department, do you see this ruling about EPA potentially having an impact on the Labor Department?
DeCAMP: I do think this will have an impact, but I think that the impact will be a positive one. I think the way we read the opinion, it's not saying that agencies don't have authority to issue rulemaking. They just have to do so within the bounds set by Congress and that for difficult, major, impactful decisions, we need to make extra sure that Congress intended to give that authority to the agencies.
CHAKRABARTI: Right. And so that language around the difficult major decisions for the first time appeared in a majority decision as written by Chief Justice John Roberts. But, I mean, I suppose from the point of view of a former Labor Department administrator, I mean, how would you define what the difficult major decisions are? Where does the expertise lie in even making that designation?
DeCAMP: I think that's going to end up being largely a legal question because in figuring out whether a question is within the scope of the authority that Congress intended, we'd have to look at the economic impact, the effect on businesses, on individuals, workers, stakeholders to get a sense of whether this falls within that narrow category of rules – one assumes narrow – that would be covered by the major questions doctrine. There's lots of small rule makings, relatively non-impactful rule makings that agencies engage in every day. I don't think those are within the scope of what the Supreme Court was addressing. I think here they're talking about much larger, more significant rule makings.
CHAKRABARTI: Hmm. OK. Well, so do you have an example in mind, or can you think of one at Labor where perhaps a major decision was made by the agency itself that now you think might have not been made because of the EPA ruling?
DeCAMP: Sure. I mean, there are lots of examples, but one that comes to mind is in the wage and hour division. The agency has issued a rulemaking that effectively grants the department authority to regulate the work that tipped employees engaged in at the task level, saying that if people spend more than half an hour not engaged in customer service activities, the employer has to pay them full minimum wage rather than the tipped wage. That's kind of an in the weeds example, but it affects millions of workers around the country in hundreds of thousands of locations.
CHAKRABARTI: Hmm. Well, Paul DeCamp, hang on here for just a second. Let me turn back to Governor Whitman, because I know we've got to let you go, Governor, but just your thought on what Paul DeCamp is saying, that, yes, it will have a limiting effect, but he doesn't actually see that as a bad thing.
WHITMAN: Well, I mean, Congress and EPA have always had a kind of a fraught relationship, shall we say. And environmental regulation is never popular. But the point here is we're talking about human health, where the EPA will – and we will talk about it, too. When you get to the Department of Health and the other agencies that could be impacted by this and departments when the … the goal is to protect human health and the environment, when we have a very clear understanding that certain behavior, certain things are harmful to human health and the environment, then we've got to act. And unfortunately, we have seen in the past that these big issues, certainly in the recent past, Congress seems to be unable to move forward. As I mentioned earlier, the EPA would have loved to have had Congress … pass the Clean Air Act that the Bush administration set up. We have a free pollutant bill … that would have done a lot for methane and emissions, but Congress wouldn't even hold a hearing. So should human health – should we be held hostage to the fact that Congress has gotten so politicized that they don't seem to be able to focus on the big issues and they only vote through the political prism rather than the policy one?
CHAKRABARTI: Hmm. Well, Christine Todd Whitman, former governor of New Jersey and former EPA administrator as well, thank you so much for joining us today.
WHITMAN: My pleasure. Thank you for having me.
CHAKRABARTI: Lisa Graves, I'm going to come back to you in just a moment. But Paul DeCamp, I'm eager to hear your response to what Christine Todd Whitman said just then, because she is absolutely right in terms of Congress's overall gridlock and the difficulty of actually passing legislation that gives this kind of specific direction that you're talking about. And yet the needs of the industries, the businesses and the people that fall under the regulatory umbrella of, you know, agencies like Labor, those needs march on. So how do you square that in terms of the agencies’ needs to do something because the economy presses forward, but Congress can't act. So what happens?
DeCAMP: Well, I don't think it's that Congress can't act. It's that Congress has not had to act for about 50 years. What we've seen over the past several decades is that the courts and the executive branch agencies have stepped into the breach and been more than willing to make the tough policy choices which lets Congress off the hook. The question here is not whether we should have Congress making hard policy choices or neutral experts who reside in the agencies. If we really look at how we'll make things happen at the agencies, all of those decisions, the tough decisions, the policy decisions are made by political appointees of one party. And so for those who would advocate for broad regulatory authority at an agency right now, ask whether they would be just as comfortable with political appointees of the opposite political party making those same decisions, because the pendulum always swings. There is a body of technical expertise of the agencies, sure. But the people who are really making the decisions are the roughly 1 percent of individuals at most department-level bodies who are the political appointees. It's not the career people who are making these choices.
CHAKRABARTI: So, Lisa Graves to you now. What's your response to Paul DeCamp essentially saying that the people making the policy decisions at the agencies are, you know, because of the changes in executive or from administration to administration, more partisan, in fact, and that that in and of itself is a problem.
GRAVES: I think it's interesting to describe these agencies as more partisan than Congress. I certainly don't agree with that description of it. And the fact is, is that the agencies do have a rulemaking process that provides democratic input. And so there is plenty of opportunity for people, for industries, for corporations to weigh in during that rulemaking process that is open to the public and have their say. And I think that one of the things that's also obscured in some ways in this sort of theoretical debate about Congress's power is that actually Congress has the power to act to remove agency authority if it thinks the agency goes too far. And so if the Congress had a majority to … pass a law to restrict those authorities. In this instance, Congress created the Clean Air Act and directed the EPA to identify the best systems of emission reduction. And that was a very clear and specific mandate and delegation of authority. What's happened really in this scenario in many scenarios is that you have this industry money, special interest money that is really flooding the field. And so, you know, in Congress, the reason Congress hasn't acted on enacting new authorities over the Clean Air Act is because there's so much fossil fuel money that has just come into these congressional races and the Senate races. And it has really obstructed the ability of we the people to have modern and really bold energy policy other than this delegation. It's also the case that these same industries have funded Patrick Morrisey’s operations. I've been investigating [the Republican Attorney General Association] for a number of years, and we've documented how the fossil fuel industry has given millions of dollars to the Republican Attorneys General Association with Morrisey at the helm and spearheading this litigation. We know that ExxonMobil, that Koch Industries has given hundreds of thousands of dollars. But more than that, we know that there's a secret, a secretive, dark money operation that is really funding this these efforts in some ways. And it's Leonard Leo's very closely tied Judicial Crisis Network, which is now known as the Concord Fund. They've given $16 million to [the Republican Attorney General Association] and no one knows who the funders are. But we do know that Koch, Charles Koch, one of the richest billionaires in the world has had this agenda to attack the so-called administrative state, to attack the ability of agencies to issue regulations across the board in numerous areas, including the EPA, that beyond the EPA. And so really what's behind this story here is that there are a number of groups that filed amicus briefs to this court that are funded by dark money, including Koch money. And this Supreme Court now has a number of justices who are put on the court by spending by some of those same groups, Leonard Leo's groups, Koch groups and more.
CHAKRABARTI: Lisa, let me just step in here, because I do actually want to talk in detail about that part of the story a little later in the show. So, I do promise we will come back to it. But before we have to let Paul DeCamp go. Paul, I just wanted to ask you again, I hear what you're saying about sort of where about your view of the partisanship that can be seen in regulatory agencies because of how they're structured. And that 1% at the top of decision makers coming in based on, you know, who's currently in the White House. But I look back at the legal history that got us here and many decades ago when Justice [John Paul] Stevens first wrote about, you know, what became the idea that the courts should defer to reasonable decisions made by agencies. And he later defended his decision, saying that while agencies are not directly accountable to the people, the chief executive is, and it is entirely appropriate for this political branch of government to make such policy choices. In fact, asserting the opposite of what you're saying, that because of if you want to call it partisanship, that makes that. there's a form of accountability there that comes through the ballot box when people vote for the next president.
DeCAMP: Sure. That's the original theory behind deferring to agency expertise. But I think that, for example, you look at Justice Scalia, who authored the Chevron decision, who later came to regret it, who understood that what was happening in the agencies was not a bunch of technical experts making objective scientific decisions. There is objective expertise in the agencies, but the policy choices are being made purely by very partisan political appointees. And there's accountability at the ballot box every four years or so. Sure. But the real issue here is who should be making laws in the United States? Who should be making major policy choices? Should that be Congress, or should it be the executive branch? We normally think of the legislature as enacting the laws. And we think of the executive branch as enforcing them. Increasingly, what we've seen is it's really the executive branch that is making the laws in the first place. And that's a problem for a separation of powers.
CHAKRABARTI: Well, Paul DeCamp, former administrator and senior policy adviser at the Department of Labor's Wage and Hour Division in the George W. Bush administration. Currently a member of the law firm Epstein, Becker and Green, thank you so much for joining us.
DeCAMP: Thank you.
This program aired on July 5, 2022.