What North Carolina can learn from West Virginia v. EPA
On Thursday, June 30, the Supreme Court handed down one of its final opinions for the 2021-2022 term in what may be one of the most consequential rulings for administrative law the high court has seen in years.
The case, West Virginia v. EPA, dealt with “basic questions about self-government, equality, fair notice, federalism, and the separation of powers,” according to Justice Neil Gorsuch. In a 6-3 decision, the majority sided with West Virginia, limiting the power of the government, and presenting parallels that are enlightening for our Tar Heel state.
Can the EPA govern carbon emissions broadly through the Clean Air Act? The Court said that they could not. While the law gives the EPA power to determine the “best system of emission reduction” for buildings that emit pollutants, Chief Justice Roberts disagreed that this statute could be construed broadly. Writing for the majority, he argued that the power to create monumental change is one that Congress must define clearly and succinctly (per the major questions doctrine). He added that “Capping carbon emissions at a level that will force a nationwide transition from the use of coal…may be a sensible solution to the crisis of the day,” but only Congress, or an agency designated by Congress, can create such a change.
This decision, while controversial, is the right one. On a textual basis, the section cited by the EPA as the source for carbon regulation was rarely used in the 50 years since the Clean Air Act’s passage. Additionally, when it was used, the power to regulate emissions always corresponded with the technology available to individual power plants/polluters. This is a technology for carbon emissions that does not currently exist.
From a political and legal standpoint, this decision reverses concerning developments from the executive and the legislature.
Every year, the president’s power increases, and the administrative state grows. Congress is able to sidestep political responsibility for the country’s shortcomings because the courts have allowed for the promulgation of rules decided by unelected experts, experts who sometimes serve a president or special interest rather than the common good (as we saw with the Trump presidency). This is one of the main causes of our government’s inability to create meaningful change, because our elected officials no longer make the majority of rules.
The results of West Virginia v. EPA promote stability within the law, ensuring that the executive cannot make vast policy shifts outside of its enumerated powers or congressional mandates. It does so by reinforcing the separation of powers and placing responsibility back into the citizens’ elected body. No longer will vast, sweeping changes to American life be decided by the election of one man. This decision will also spur Congress to take meaningful action to solve the issues that threaten the American public. It puts the spotlight back on our representatives, the first step in tearing down the curtain of institutional incompetency.
For this reason, the case is reminiscent of a case in North Carolina: Leandro v State of North Carolina.
In 1997, the North Carolina judiciary expressed and defined the right and obligation to education found in the state Constitution. In 2004, the courts said that this obligation had not yet been met. However, it was not until 2021 that unlawful action was taken against the legislature, with a judge ordering the state to pay for a remedial plan developed by the Roy Cooper administration. With this most recent decision, the judiciary began an untenable advance into legislative affairs, with both branches trying to seize for themselves the power of the purse. Like West Virginia v. EPA, this case presents important issues over separation of powers and the basis of fair government.
Are there severe inequities in our public education system? Yes. Are their children who are being forgotten and left behind by the schools meant to serve them? Yes. But is it the job of the courts to decide what method of reprieve should be used to solve this problem? No. And is it within either the executive’s or the judiciary’s power to coerce the General Assembly to act based on their policy preferences? No.
Decisions like Leandro and the policies enacted by the EPA not only shift the blame away from the people that are meant to make those decisions but also raise serious questions over the legitimacy of the legislature. If the Court can control our representatives’ power in one instance, who’s to say it can’t in another?
What Leandro and EPA teach us is that the locus of government and politics should always rest with the people and their representatives. It must be them. It is the only means for passing long-lasting and stable policy. Not only this, but any other method would be unconstitutional as well as ineffective. For evidence, I point to the fact that this decision is still at the forefront of North Carolina’s politics more than 20 years after the courts inserted themselves into legislative affairs.
As the Leandro verdict looms on the distant horizon, remember this, and remember that it is not the job of the judiciary to deliver the expedient decision, but the right one.
Alex Urban is an intern at the John Locke Foundation. He is a graduate of East Carolina University and has worked for the past two years as a community organizer.