How to Delegate Authority for Climate Action

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Scholar advocates the use of foreign policy authority for executive branch climate action.

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In the recent West Virginia v. EPA decision, the U.S. Supreme Court ruled that the U.S. Environmental Protection Agency (EPA) could not rely upon certain provisions of the Clean Air Act to regulate greenhouse gas emissions. According to some observers, this decision has created a major obstacle for federal climate regulation and set the stage for future conflict between courts and federal regulators.

In a recent article in the Yale Journal on Regulation, Mark Nevitt, a professor at the Emory University School of Law, claims that the federal government can pursue other paths to achieve climate regulation in spite of the Supreme Court’s skepticism of EPA authority under the Clean Air Act.

To avoid the problems posed by the Court’s “nondelegation” doctrine—a legal principle that limits the legislature’s ability to give agencies rulemaking authority—Nevitt suggests that President Joseph R. Biden could exert his powers under Article II of the Constitution to address climate as a matter of foreign affairs and national security.

Nevitt grounds his argument at the outset in recent developments related to the nondelegation doctrine that pose a particular problem for climate regulation. Although courts have not employed the nondelegation doctrine to strike down a regulation since the New Deal era, Nevitt points to Justice Neil Gorsuch’s dissent in Gundy v. United States as evidence that members of the Court may soon revive their use of the nondelegation doctrine.

In his Gundy dissent, Justice Gorsuch proposed doing away with an old test for excessive congressional delegations based on whether legislation contains an “intelligible principle” constraining agency discretion—a standard that gives Congress wide latitude to delegate power to agencies. Nevitt explains that so long as an intelligible principle exists, the Court will find the law and the agency’s ensuing regulation to be constitutional.

Nevitt describes Gorsuch’s new proposed test as creating three guidelines to determine whether Congress’s grant of regulatory authority to the executive branch is constitutional. First, Congress may allow agencies to fill in the details of legislation, provided Congress grants authority that is “sufficiently definite and precise.” Second, Congress can delegate authority contingent upon the executive branch making factual findings necessary to implement laws. Third, Congress may delegate powers that are “non-legislative,” and thus already belong to another branch of government.

Although Gorsuch’s proposed test is not law, Nevitt notes that it could soon be adopted by a majority of the Court. Chief Justice John Roberts and Justice Clarence Thomas joined Gorsuch’s dissent. In addition, Justice Samuel Alito indicated in a separate concurrence in Gundy that he would support overturning the intelligible principle test. Justices Brett Kavanaugh and Amy Coney Barrett—not members of the Court at the time of the Gundy decision—also seem willing to adopt a stricter nondelegation test, thus creating the majority necessary to alter the doctrine.

Nevitt argues that Gorsuch’s concurrence in Gundy, combined with the majority’s opinion in West Virginia, points toward an “uncertain” future for regulatory agencies.

In spite of this uncertainty, Nevitt contends that certain parts of the Clean Air Act give the executive branch the power to regulate emissions that cause cross-border pollution. According to Nevitt, these provisions would provide a more promising outlet for climate action because they relate to the executive branch’s Article II powers over national security and foreign relations—contexts in which the Court has been more deferential to the executive branch.

The primary strategy Nevitt outlines is to use Section 115 of the Clean Air Act to avoid nondelegation challenges. Section 115 grants EPA authority to order U.S. states to reduce their emissions if those emissions cause international air pollution, Nevitt claims. This strategy would differ from the Clean Power Plan, for example, which attempted to regulate emissions under Clean Air Act provisions governing pollutants that cause domestic harms.

Nevitt furthermore contends that Section 115 would better withstand legal challenges on nondelegation grounds because Section 115 invokes the executive branch’s constitutional authority over national security and foreign affairs. Because of the executive branch’s separate authority over foreign affairs, Nevitt reasons that Section 115 would also withstand the third guideline from Justice Gorsuch’s Gundy dissent.

According to Nevitt, using Section 115 for climate regulation would require EPA to take two important steps.

First, EPA would need to make what is called an endangerment finding. Nevitt explains that this finding would require EPA to find that greenhouse gas emissions harm public health or welfare in another country—similar to the endangerment finding that EPA made domestically in 2009 that carbon dioxide pollution threatens the public in the United States.

Following an international endangerment finding, EPA would then need to make a “reciprocity determination.” The reciprocity determination requires EPA to demonstrate that the other country that is threatened by climate change provides the United States with the same rights that the United States provides to other countries via Section 115. In theory, both the Clean Air Act and the Paris Climate Accord provide the necessary foundation for such a reciprocity finding, although Nevitt concedes this conclusion remains untested in the courts.

Following an international endangerment finding and reciprocity determination, EPA would then have the authority to force states to reduce their greenhouse gas emissions, Nevitt contends.

Nevitt also examines some other approaches to justifying climate regulation on foreign affairs and national security grounds. For example, he suggests that the U.S. Department of Homeland Security could use its official Climate Action Plan to take action to address climate change should the agency make the connection between climate change and immigration trends on the southern border.

Nevitt concludes that, in spite of the threat the nondelegation doctrine poses to climate action, linking such action to the President’s authority under Article II of the constitution would provide an alternative roadmap for successfully adopting federal climate policy.