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Dangerous Opinion on Climate Change

July 13, 2022

“[T[here is no escaping the conclusion that the opinion is dangerous on two fronts: for the climate and for administrative capacity more broadly,” writes Prof. Shelley Welton of the Court’s decision in West Virginia v. EPA.

In a new series of essays, the Penn Program on Regulation’s flagship publication, The Regulatory Review, has invited a diverse group of leading scholars and practitioners to comment on the Supreme Court’s major regulatory decisions from its recently completed term. These essays provide insight and analysis about the impacts of the decisions across a variety of major legal and policy issues, including abortion, climate change, immigration, health care, gun violence, and voting.

Among the contributors to this series are three University of Pennsylvania Carey Law School professors: Professor of Law Allison Hoffman, Presidential Distinguished Professor of Law and Energy Policy Shelley Welton, and Jefferson B. Fordham Professor of Law Tobias Barrington Wolff.

In “A Dangerous, Even If Expected, Opinion on Climate Change,” Welton addresses the Supreme Court’s West Virginia v. U.S. Environmental Protection Agency (EPA) decision that invoked the major questions doctrine to block the EPA from adopting generation-shifting climate regulations.

The following is an excerpt from Welton’s essay:

The Supreme Court finally delivered its long-awaited opinion in West Virginia v. EPA on the last day of this year’s term. The opinion concerns the scope of the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas (GHG) emissions from power plants — an issue that has been winding its way through various courts since 2015.

The long wait for the opinion offered plenty of time for dread and suspense to mount. Prognosticators suggested that the opinion might be “the Earth’s nightmare” and worried that it might deliver a major victory in the conservative effort to “chip away at the scope of federal agencies’ work.”

It is only in the context of these grim predictions that early takes on the opinion in West Virginia v. EPA included “a sigh of relief” and a reflection that the opinion is “about as good (‘good’) as could have been hoped for.”

Inasmuch as the Court did not completely strip EPA of its authority to regulate greenhouse gases, these reactions are understandable. But once one de-anchors from these dire expectations, there is no escaping the conclusion that the opinion is dangerous on two fronts: for the climate and for administrative capacity more broadly… .

In Wolff’s essay, he argues that the majority’s reasoning in Dobbs v. Jackson Women’s Health “purports to rely on a strict account of historical practice” but instead makes a “radical shift” in constitutional interpretation.

Hoffman’s essay reviews the major health-related decisions of the last term, including those addressing Medicare and Medicaid policies as well as vaccine and other public health mandates.

The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives.

Launched in 2009 and operating under the guidance of Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, The Review is edited by students at Penn Carey Law. It is part of the overarching teaching, research, and outreach mission of the Penn Program on Regulation, which draws together more than 60 faculty from across the University of Pennsylvania.

Read Welton’s full essay at The Regulatory Review.