BU Today: How serious a blow to climate change mitigation could the decision be?

Richard Reibstein: This is a troubling case, because it could be an opportunity for the conservative justices to articulate a stronger version of two doctrines against regulatory agencies.

One is the “non-delegation doctrine” that argues that agencies should not have too much power that is of a legislative nature; Congress can’t delegate too much of its own power to an agency. This could undo the authority that Congress has seen fit to invest in agencies. The justices would in effect be saying—if they hold that EPA has been given too much power—that the Constitution limits congressional delegation in this way. It’s hard to find the language for that in the Constitution. Not to mention that in this modern world, it is ridiculous to think that Congress can do the jobs we need done without delegating a lot of discretionary authority to agencies. 

The other concern is that the justices will elaborate what’s called the “major questions” doctrine, the idea that agencies aren’t supposed to cause major changes in society without express congressional authorization. This, too, is not to be found that I can see in the Constitution. At first glance, it seems to make common sense. But it doesn’t when you think maybe Congress wants the agency to cause major changes. After all, we created agencies to protect the public health, the environment, to regulate stock exchanges, to ensure public safety—they were all major questions. Again, the court [would be] asserting a right not expressly given to it, to insert its own judgment. 

This would, in my view, be the very opposite of conservatism, [a] radical displacement of legislative authority from the constitutionally designated body to the court instead.  

BU Today: If the ruling limits the EPA, are there effective mitigation alternatives the Biden administration can pursue?

Richard Reibstein: There certainly are, but if we just look to the Biden administration to do them, we may be disappointed. We need to actively support them. 

The administration can start bringing to a halt all fossil-fuel extraction on federal land, but this will not be easy unless the American people call for this action. The administration can push for stricter legislation to tighten up on every kind of emission, to increase enforcement of existing rules, to make it harder to pollute anything—for carbon emissions are intimately related to many other forms of pollution, waste, toxics. The administration can engage in a mammoth, scaled-up educational effort that uses the tools of assistance, finance, [and] partnerships to convert our production and resource-using activities to clean energy, cleaner materials, safer outcomes. We can restore pollution prevention programs and expand them. We can restore partnerships and research and demonstration programs that create competition for dirty industries.

A nationwide effort to transform our industrial output and modes of living will require the support of the American people. That is a shift away from laissez-faire, the mistaken idea that the government should stay out of the economy. The result of a bad Supreme Court decision, I would hope, would be a nationwide recognition that the government must act, must intervene in the economy to help the clean industries to flourish, and that we all must support this change. We have to work with our president if he is going to succeed.

BU Today: Why hasn’t the public heard more about the case?

Richard Reibstein: It really points to a larger question. Why do we have so little in-depth discussion of news, but rather headlines and breaking highlights, over and over, on many channels? Why do Americans know so little about these doctrines that judges are using to hogtie the agencies that work for them? I think it takes too long to explain for the typical news format. And I think some of the news is distorting, like Fox News, which does not provide information, but propaganda that serves special interests. 

I also think that the typical news format presents binary choices, as if it is an arena for competition, and too rarely presents considered analysis. The question we should be asking is, how can we elevate the national conversation so we have more thoughtful discussion of what’s happening in our country and the issues that concern us all?