Justice Kagan warns parts of East Coast could be 'swallowed by the ocean' in dissent in EPA case

EPA case decision comes as a major blow to the Biden admin's climate change agenda

Supreme Court Justice Elena Kagan warned parts of the East Coast could be "swallowed by the ocean" in a dissenting Supreme Court opinion in an environmental regulation case Thursday. 

"If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean," Kagan wrote in her dissent. 

Justices Stephen Breyer and Sonia Sotomayor joined Kagan's dissent in the 6-3 case. 

"Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,'" Kagan wrote.


Kagan said the dangers of rising temperatures and, as a result, devastating environmental effects, including, "Rising waters, scorching heat, and other severe weather conditions [that] could force ‘mass migration events[,] political crises, civil unrest,’ and even state failure.'"

Kagan elaborated that the Earth was "now warmer than any time" in modern history, highlighting the importance of scientific research on carbon dioxide contributing to global warming. She also wrote global warming could be the cause of "4.6 million excess yearly deaths."

She added that the EPA's authority in curbing greenhouse emissions did fall into the parameters set by Congress

Justice Elena Kagan

Justice Elena Kagan at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/Pool via Reuters)

"Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare,’" she wrote. 

Kagan wrote carbon dioxide and other such greenhouse gases did, in fact, categorize as such per the description. 

She said regulating fossil fuels constituted one of "the most significant of the entities [the EPA] regulates" and curbing such emissions was a factor in any effective strategy in addressing climate change

Kagan wrote in the dissenting opinion that the EPA has now been blocked from enacting generation shifting in power plants as a means of shifting electricity generation to lower emission alternatives as a result of the decision.  


"The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait—even to see what the new rule says—to constrain EPA’s efforts to address climate change," Kagan wrote. 

The majority, led by Chief Justice John Roberts ultimately ruled the EPA cannot make sweeping rules that could overhaul industries without the approval of Congress. 

Power plant wyoming

In this photo taken with a slow shutter speed, taillights trace the path of a motor vehicle at the Naughton Power Plant, Jan. 13, 2022, in Kemmerer, Wyoming. (AP Photo/Natalie Behring / AP Newsroom)

The case comes as a result of the Clean Power Plan created in 2015 during the Obama administration, which aimed to reduce carbon emissions at power plants by shifting from coal to natural gas and finally to wind and solar energy. The court later stayed the plan while it was under review by lower courts. The plan was then repealed by the Trump administration and replaced with the Affordable Clean Energy (ACE) Rule. 

Under the Biden administration, the ACE was eventually vacated by the D.C. Circuit Court of Appeals, prompting the repeal of the Clean Power Plan. The Biden administration announced that it would not reinstate the Clean Power Plan but, rather, implement a new rule, citing Section 111 allowing the EPA to "regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’"


West Virginia sued, citing the "major questions doctrine," which states there must be a clear statement for the court to conclude Congress intended on granting the EPA such authority to regulate such a large portion of the economy. 

In the majority opinion, Roberts said it is "not plausible" Congress gave such authority to the EPA via Section 111.

Supreme Court building

The U.S. Supreme Court building, May 4, 2022 in Washington. (AP Photo/Alex Brandon, File / AP Newsroom)

"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body," the decision read. 


West Virginia v. Environmental Protection Agency proved a blow to the executive branch's reach and the Biden climate agenda. The case was the last of two rulings on Thursday as the court closes for its summer recess. 

Thursday also marked Breyer's last day on the bench, after he notified President Biden Wednesday of his retirement to go into effect at 12 p.m Thursday. Justice Ketanji Brown Jackson was sworn in on Thursday as his replacement.