As the Supreme Court’s term wound down, its slate of conservative justices cast a shadow of uncertainty over the future of federal environmental protection — a move that environmental and legal experts say could have wide-ranging effects in industry-friendly states like Louisiana.
For decades, Louisiana environmental and community advocates working in one of the nation’s largest hotspots for toxic air emissions have been waiting for a federal administration sympathetic to their plight.
It seemed like that might have arrived with the inauguration of President Joe Biden last year, who pledged to prioritize environmental justice within his administration. That was further enforced with a visit from the head of the Environmental Protection Agency to areas within the heavily-industrialized area of Louisiana, stretching from Baton Rouge down past New Orleans.
But now, the highest court in the land has presented a new obstacle in one of its final rulings: the “major questions” doctrine. While the Supreme Court’s decision lacks an immediate impact on environmental regulation, it leaves advocates at the local and national level with a sense of foreboding.
“This is just a beginning, I fear,” said Marylee Orr, who leads the Louisiana Environmental Action Network. “People really count on having the federal government to turn to when things aren’t working out locally.”What is the 'major questions' doctrine?
On the last day of June, the Supreme Court ruled onWest Virginia v. EPA, a lawsuit over whether the U.S. Environmental Protection Agency had the authority under a section of the Clean Air Act to require coal and natural gas power plants to generate electricity from cleaner sources to limit carbon emissions.
Ultimately, the court’s six conservative judges sided with the nation’s coal state, arguing that the EPA overstepped the powers that Congress intended to grant when it crafted the already-defunct Clean Power Plan under the Obama administration.
The decision didn’t take away the EPA’s authority to regulate greenhouse gas emissions — as some environmental advocates feared — but it marked the first explicit mention of the “major questions” doctrine in a majority opinion. It’s the rise of that relatively new legal framework that leaves many national and Louisiana advocates feeling grim.
“The decision itself is relatively narrow, but the atmosphere surrounding it is really a source of a great deal of concern,” said Stan Meiburg, the executive director of Wake Forest University’s Center for Energy, Environment and Sustainability.
Tulane Environmental Law Clinic attorney and professor Lauren Godshall said the “specter” of the “major questions” doctrine is “unsettling” and believes it will further delay any scientifically-backed action on curtailing global warming.
“Any forward progress is just going to grind to a halt,” Godshall said.
The doctrine has gained ground in the past three decades on Chief Justice John Roberts’ court, crafted by conservative judges in response to the executive branch’s growing role in policy-making. Under its reasoning, justices can reject federal agencies’ regulatory authority if it meets two requirements: the measure tries to address an issue of “vast ‘economic and political significance,’” and the power isn’t explicitly granted by Congress.
But that creates a wide umbrella that remains unchecked. For now, Meiburg, who’s also a former EPA staffer working with the Environmental Protection Network, said in theory, the justices’ interpretation of “what constitutes a major question really depends on what they want it to.” This was the third time the reasoning was used by the Supreme Court to strike down new EPA rules.
The lack of clear criteria for federal agencies tasked with interpreting Congress’ delegation clouds both the legislative and rulemaking process, Meiburg argued. Especially since members of Congress often lack the expertise of agency staff to legislate specific strategies to tackle the issue at hand.
“It's impossible for laws to anticipate all future circumstances,” he said. “Often, it means that the Congress may not get it right.”Move lamented by activists, applauded by industry
As activists watch the Supreme Court strip away EPA authority, they dread a future with fewer options for solving the broad environmental issues threatening Louisiana — from pollution to climate change. The timing, they say, couldn’t be worse.
Environmental scientist Wilma Subra, a technical adviser for the Louisiana Environmental Action Network, has worked with state residents seeking relief from pollution for more than 40 years.
The promise of economic development and tax revenue makes it difficult for residents in the state’s growing chemical corridor to push for tighter enforcement on air emissions and other toxic releases, Subra said. That’s despite EPA data showing that Louisianahas the highest toxic air emissions per square mile of any state.
She, and the residents she works with, are already used to navigating a challenging landscape for protecting their health, and will continue to follow a playbook relying on early public participation — but a weaker EPA makes that harder.
“The losers in this become the community who wants an input, wants to be protected from the emissions and wants the emissions to be as clean as possible so it does not affect their health or their wellbeing,” Subra said.
Support for their cause at a federal level waxed and waned depending on the administration. But Orr, who co-founded LEAN to facilitate communication between residents, corporations and government, said residents depend on the chance to appeal to the EPA and hope for federal action to force the state’s hand.
State legislators have historicallydeferred to the fossil fuel industry, striking down bills that could increase air monitoring or even public awareness about projects. Community and environmental groups often argue the state Department of Environmental Quality lacks teeth and resources, leaving them skeptical of the agency's ability to protect human health and help the state tackle carbon emissions.
A 2021 report from the Louisiana Legislative Auditor found that state enforcement on facilities that violate their permit isn’t timely — taking an average of 2 years to finalize settlements — and the agency suffers from low staffing and high turnover. In 2019, an Environmental Integrity Project report showed the state agency’s funding had been slashed by 35% from 2008 to 2018 — one of the steepest cuts in the nation.
Godshall said she and her clients at the Tulane Environmental Law Clinic — many of whom struggle with industrial pollution — have noticed an uptick in the responses from the regional EPA office, in lieu of state action. More petitions result in inspections, and the EPA has also begun reviewing and investigating civil rights complaints.
But for now, the broad, systemic change needed to address larger environmental problems feels out of reach, she said.
“It's just hard to know where to go from here to make any kind of meaningful impact on a large scale. All our victories seem to be very small,” Godshall said.
Louisiana Oil and Gas Association President Mike Moncla cheered the Supreme Court decision, calling it a step in the right direction to rein in “governmental overreach” that he argued has “cost Americans at the pump.” The ruling returns authority to legislators.
“The EPA’s actions and regulations have been in lockstep with the left wing’s green agenda,” Moncla said. “We applaud this Supreme Court decision and look forward to more balanced decisions toward our industry in the future.”
Republican attorneys general across the country are already strategizing ways to strike down other pending federal environmental regulations under the “major questions” doctrine, including those aimed at tackling climate change. That shifts the focus to Congress — and to state action.
Local support needed
Logan Burke leads the Alliance for Affordable Energy, a Louisiana utility watchdog group that advocates for consumers. Her group has never been one to rely on the federal government for solutions. And she said the Supreme Court’s decision exemplifies the importance of public pressure on state and local officials.
“We have known for a long time that decisions about environmental quality will always come back down to local and state decision makers,” Burke said. “It is the local permitting (and) local decisions that impact people's lives.”
That means asking the Louisiana legislature to increase the state DEQ budget and attending Louisiana Public Service Commission meetings, among other local actions, while federal agencies crack down on existing mandates, Burke said. “We need for all of these pieces to work together,” she said. “There is no silver bullet. It is a silver buckshot.”
Gov. John Bel Edwards’ office remains committed to enacting the Climate Action Plan completed at the start of this year, according to spokesperson Christina Stephens. It’s the first of its kind in the deep south and charts a path for emissions reduction to reach carbon neutrality by 2050 through collaboration across sectors.
Stephens said the governor’s office was “disheartened” by the ruling’s potential to curtail the federal government’s power to curb climate change, adding that it showcases the importance of “state climate leadership.”
“In Louisiana, we know we can achieve deep cuts in greenhouse gas emissions by working with industry, across all levels of government, and alongside communities to lean into the energy transition,” Stephens said. “Nowhere are the ravages of climate change more obvious than across Louisiana, where we have been hit by extreme hurricanes and heat with increasing vigor in recent years.”
Environmental Defense Fund General Counsel Vickie Patton, who leads the national environmental group’s clean air program, noted that there are solutions that would incentivize renewable energy and energy efficiency investments — two key strategies for cutting greenhouse gas emissions — already embedded in the troubled but revived Build Back Better Act before Congress.
“It just needs to get across the finish line with the support of members of the U.S. Senate,” she said.
Patton and Meiburg also emphasized that the EPA still has the authority and responsibility to address key sources of climate change — a challenge that EPA Administrator Michael Regan said his agency isn’t shying away from after hosting a roundtable in New Orleans for Essence Fest the day after the ruling.
The agency can cut harmful emissions in other ways, from tightening restrictions on particulate matter to methane, a potent greenhouse gas.
Though the groundswell of support Burke hopes for remains unseen, she believes it’s inevitable as the stakes for Louisiana grow.
“If the question is, ‘Is there any hope that Louisiana can change?’ I think part of the answer is if we don't change, we don't have a future,” Burke said.
