The Environmental Protection Agency last week finalized a “suite of rules” governing electricity producers. The EPA first announced these air, soil and water regulations two years ago, as tools to reduce greenhouse-gas emissions by forcing coal-fired power plants to close prematurely. The rules reflect the Biden administration’s “whole of government” approach to imposing its climate agenda, which puts ideological ambition above the limits of congressionally delegated authority.
Soon after the EPA announced this plan in 2022, the U.S. Supreme Court in West Virginia v. EPA struck down the Obama-era Clean Power Plan, which also sought what the agency calls “generation shifting,” from fossil fuel to renewables. The court found no evidence that Congress had granted the EPA the sweeping power of “deciding how Americans will get their energy.” This signaled trouble ahead for the Biden strategy, which relied on what was already creative rulemaking in the express pursuit of precisely that goal.
Following that defeat, the EPA labored to shield these rules from that same constitutional challenge. But a standard employed by the Supreme Court against supposedly deceitful conduct during the Trump administration should doom the effort.
In speeches and congressional testimony, EPA officials described this coming “suite of rules” as using “all of the tools in our toolbox” to reduce greenhouse-gas emissions. They cited a variety of statutory regimes, including some with no plausible claim to being vehicles for reducing airborne emissions, like the Clean Water Act and a solid-waste law known as the Resource Conservation and Recovery Act.
While the Clean Power Plan’s constitutionality was still pending before the Supreme Court, EPA Administrator Michael Regan said the new rules would finish the job the plan began. In saying that the regulatory blitz was synchronized to shut down politically disfavored coal-fired generation plants, Mr. Regan described coerced retirements as “the best tool for reducing greenhouse gas emissions.”
That is, the laws were enacted for one purpose, and the agency admitted it planned to use them to achieve a different purpose.
Our system of government frowns on regulators’ lying about their reason for doing something. Supreme Court precedent is clear that “an agency must ‘disclose the basis’ of its action.” In 2019 in Department of Commerce v. New York, the court addressed allegations that the Trump administration included a citizenship question in the 2020 census for reasons beyond those acknowledged in the administrative record. The majority agreed that to determine the real factors driving inclusion of the citizenship question, depositions of senior agency officials were appropriate. Georgetown Adjunct Law Professor Jack Thorlin has described the case as formally unveiling the “rule against pretext.”
Then the court ruled in West Virginia, finding that the Clean Power Plan’s generation-shifting goal presented a “major question.” That changes the inquiry from whether an agency is lawfully exercising a delegated power to whether Congress delegated such a power to the agency at all. The majority specifically ruled that before employing regulations to compel plant closings, the EPA must show a clear grant of authority from Congress, which the agency failed to establish and, the court noted, it is unlikely any agency possesses.
Like the Clean Power Plan, the EPA’s newly finalized replacement rule requires adoption of technology that doesn’t exist. More remarkably, the agency simultaneously published the rules governing mercury, water emissions and solid-waste storage, all of which it had clumsily promised would drive plants to close and thereby reduce greenhouse-gas emissions.
EPA officials apparently grasp that the opinion in West Virginia prohibits the practice that admirers call “law whispering” or “teaching old laws new tricks”—particularly on major questions like contriving changes in our energy mix. Gone are paeans to inventive ways of coercing plants to retire. With a newfound modesty, the administrative record published for these non-greenhouse-gas emissions rules disputes claims of causing “a significant number of retirements” and attributes any generation shifting to Inflation Reduction Act subsidies.
This ploy to dodge constitutional analysis need not succeed. The previously admitted pretext behind the EPA’s “suite of rules,” individually and collectively, is to achieve the outcome that the court in West Virginia declared the agency has no authority to pursue. The doctrine against pretext debuted in Department of Commerce should trigger review under the major-questions doctrine; the disingenuous effort to avoid it presents another basis for review. Courts can take Mr. Regan’s word for it or, as in the Trump-era census case, order discovery to determine what factors truly drove the agency’s decisions.
The group Government Accountability and Oversight has argued exactly this to the U.S. Circuit Court of Appeals for the District of Columbia, in an amicus brief I co-authored in a challenge to one of the suite of rules (Kentucky v. EPA). This argument should ensure Supreme Court review of the constitutionality of Mr. Biden’s “whole of government” approach and specifically the “suite of rules” the EPA assembled to skirt major-questions review.
Bureaucratic workarounds of agencies’ limited delegations of power are an affront to the judiciary and to “our democracy.” The Biden backdoor climate gambit is a good place to draw the line.
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