By David B. Rivkin, Jr., and Eric Schmitt
March 3, 2022, in The Hill
Russia’s invasion of Ukraine has crystalized the critical importance of America’s energy security, as our European allies — increasingly dependent on Russian fossil fuels to keep the lights on when “renewable” power sources fail to meet demand — balance their need to confront Vladimir Putin with maintaining their access to Russian oil and gas. These events make all the more important the pending ruling by the U.S. Supreme Court in West Virginia v. EPA, a landmark case challenging the Environmental Protection Agency’s Obama-era Clean Power Plan — which could drive the U.S. itself toward inadequate, unreliable domestic energy sources and inevitable dependence on foreign countries.
The case was argued this week before justices who appeared clearly skeptical of EPA’s power to impose radical transformation of our energy sector through presidential fiat. Much of the argument focused on the “major questions doctrine.” This doctrine bars regulatory agency interpretations of federal statutes that would give those agencies the power to answer contentious and far-reaching policy questions that are properly handled by Congress itself, without a clear, explicit grant of statutory authority from Congress delegating its resolution to the agency.
The major questions doctrine is a firewall for democracy against the never-ending efforts by American progressives to impose policies, such as the Green New Deal, which they have been unable to achieve through the ballot box. But, whenever progressives hold the levers of executive authority, as they did during President Obama’s administration and do again under President Biden, they have turned to executive action and contorted constructions of existing statutes to accomplish their dreams.
Look no further than Biden’s all-out assault on domestic energy production, with a goal of fully decarbonizing the U.S. power sector by 2035. He unilaterally canceled the Keystone XL pipeline on the first day of his administration and froze the oil and gas leasing process for federal lands, stopping future oil and gas projects in their tracks. Biden’s administration has worked to impose crippling restrictions on ever broader swaths of the domestic energy industry through the president’s social cost of carbon edict (seeking to measure domestic benefits of energy production against the supposed worldwide costs of climate change), a new methane rule that will subject for the first time thousands of existing oil and gas facilities to costly air regulations, and other administrative assaults.
Biden barged ahead with these efforts, despite proper statutory authority. Instead, his administration has dealt with the lack of proper statutory authority through “work-arounds” that rely on aggressive over-readings of existing statutes.
Conservatives, including the nation’s Republican state attorneys general, have fought back, suing to protect America’s energy security and hold the president to the statutory and constitutional limits that constrain his power. State attorneys general have scored major wins on this front, blocking Biden’s social cost of carbon effort and winning an order compelling the restart of the oil and gas leasing process for federal lands.
If the oral argument on the Clean Power Plan is any indication, the tide is set to turn against the relentless push to find unheard-of-authority on major policy issues hidden in existing statutory schemes. And, aside from the constitutional imperative of preventing the executive branch from poaching on congressional authority by running afoul of the major questions doctrine, the policy consequences of allowing Biden to twist his statutory authority beyond recognition are dire. They are illuminated when one looks across the Atlantic, where Russia is waging the first open war of aggression by a major power in Europe since World War II.
Energy is the foundation of Russia’s power and influence. Large swaths of Western Europe rely on Russian oil, natural gas and the energy infrastructure that Russia has built. This dependence is in no small part because countries such as Germany have ceded their energy security. Late last year, Germany announced the closure of three of its six remaining nuclear power plants, with a commitment to close the last three by the end of 2022. Berlin did this, giving up 12 percent of its 2021 electricity production capacity, despite an energy crisis that was spiraling out of control, with energy prices in Europe repeatedly breaking records and the prospect of blackouts.
In pursuing an unyielding climate agenda — for example, a goal of making renewables such as wind and solar meet 80 percent of power demand by 2030 — Germany laid siege to its own power grid and now relies on Russia to fill the gaps. To be sure, in the past several days, German Chancellor Olaf Scholz announced that these commitments will be reconsidered; it remains to be seen what Germany ultimately does.
The fight against executive overreach and the relentless progressive campaign against our energy security couldn’t be more important. America isn’t immune to Europe’s reality. The United States is projected to lose its net oil exporter status this year. When domestic gas prices started to skyrocket during the summer, the Biden administration turned to the OPEC and its allies such as Russia — the OPEC+ group of countries — to pump more oil to help the American consumer and the world economy. That is unacceptable — especially since OPEC+ rebuffed Biden.
A Supreme Court decision in West Virginia v. EPA that builds on the major questions doctrine and acknowledges the clear statutory and constitutional limits on abuses of executive power is essential. Coming on the heels of Biden’s Supreme Court losses on his administration’s eviction moratorium and vaccine mandate, it would be dispositive in the fight against executive overreach and would neutralize the president’s ability to remake America’s production and consumption of energy without Congress’s consent.
David B. Rivkin Jr. served in the Justice Department and White House Counsel’s Office in the Ronald Reagan and George H.W. Bush administrations. He practices appellate and constitutional law in Washington and represented a coalition of states that challenged the Obama administration’s Clean Power Plan. Although he is not involved in West Virginia v. EPA, his law firm represents a petitioner in that case.
Eric Schmitt is attorney general of Missouri and a candidate for U.S. Senate. Missouri was one of the petitioners in West Virginia v. EPA.