A deeply radical ruling Thursday by the United States Supreme Court has set back but not ended efforts to regulate greenhouse gas emissions from the country’s fossil-fuelled power plants.
“By a 6-3 vote, with conservatives in the majority, the court said that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants that contribute to global warming,” The Associated Press reports. “The decision, said environmental advocates and dissenting liberal justices, was a major step in the wrong direction—‘a gut punch’, one prominent meteorologist said—at a time of increasing environmental damage attributable to climate change amid dire warnings about the future.”
The new conservative supermajority on the court “concluded that Congress’ directive to EPA to regulate power plants emitting any pollution that ‘may reasonably be anticipated to endanger public health or welfare’ using the ‘best system of emission reduction’ could—despite the lack of any such provision in the Clean Air Act—only apply to things ‘like scrubbers on smokestacks’ and not a regulation designed to shift electricity generation away from coal to cleaner energy sources,” Climate Nexus explains. To make the case for that position, they had to introduce a whole new legal principle that observers now foresee the judges applying to other regulatory decisions in months and years ahead.
“The Court’s conservative supermajority relied upon a new ‘major questions doctrine’ that conservative justices are increasingly applying to questions they deem of great political and economic significance, and requiring agencies to have explicit authority from Congress to decide such questions,” Climate Nexus writes. “The case—unprecedented in the way the Court’s supermajority aggressively sought to strike down a regulation already repealed by one administration, discarded by another, and rendered moot by market forces despite never even going into effect—is essentially a pre-emptive advisory opinion that tries to restrict future regulations. It represents an enormous expansion of the Court’s power to interject itself into the actions of the (other) political branches of government.”
A Real Ruling on a Hypothetical Case
The case before the court, West Virginia v. EPA, was initially launched in response to President Barack Obama’s Clean Power Plan, a signature attempt at climate regulation that Trump had already rolled back. Which means the newly-radicalized Supreme Court was choosing to hear and decide a case based on a hypothetical White House initiative that never entered into force, and has been off the books for three years.
The case “involved a policy that had not been implemented, nor replaced with anything similar. But just in case the administration was even thinking about it, the Supreme Court decided to weigh in,” writes climate journalist Amy Westervelt on the excellent Hot Take blog [subs here]. “It’s an unprecedented move, and one that restricts the federal agency tasked with environmental protection from following science.”
In the majority decision, “the court went out of its way to limit the ability of the EPA to meaningfully regulate carbon dioxide and other greenhouse gas emissions from existing power plants,” agrees Washington Post columnist Eugene Robinson. “The state of West Virginia and several coal mining companies sued to prevent President Biden’s EPA from imposing rules that it had no intention of trying to impose.”
Harvard Law School professor Richard Lazarus says the decision, and the new legal doctrine behind it, upend half a century of “enormously successful” environmental protection law. “Notwithstanding their obvious gaps and persistent shortfalls, [those laws] have significantly reduced air, water, and land pollution across the country while the nation’s economy has grown exponentially,” he writes for the Post.
“Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities on a real-time basis,” Lazarus adds. But now, “the court insists that capacious statutory language is insufficient to sustain significant agency environmental regulations, despite the obvious reality that the current Congress is incapable of doing more. The threatened upshot is the unraveling of the national government’s ability to safeguard the public health and welfare just as the United States and all nations face the greatest environmental challenge of all: climate change.”
Capping Emissions ‘May Be Sensible’: Roberts
In his majority decision, Chief Justice John Roberts acknowledged that “capping carbon dioxide emissions at a level that will force a nation-wide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” AP says. But “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands,” agreed Justice Neil Gorsuch. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
That line of argument held no water with Justice Elana Kagan, who wrote the minority dissent on behalf of herself and judges Stephen Breyer and Sonia Sotomayor.
“The enacting Congress told EPA to pick the ‘best system of emission reduction’ (taking into account various factors),” she wrote. “In selecting those words, Congress understood—it had to—that the ‘best system’ would change over time. Congress wanted and instructed EPA to keep up. To ensure the statute’s continued effectiveness, the ‘best system’ should evolve as circumstances evolved—in a way Congress knew it couldn’t then know.”
But now, “the Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy,” Kagan added. “I cannot think of many things more frightening.”
Much of the news coverage and analysis over the last several days has pointed to the convenient reality the Supreme Court majority conveniently sidestepped: that with precious little time available to get the climate emergency under control, the U.S. Congress is showing no inclination for a fast, far-reaching response.
“Underlying all these issues is a lack of action from Congress, reflecting bitter, partisan disagreements over the role of the federal government,” AP notes. Writing for The New Yorker, veteran climate writer and campaigner Bill McKibben traces that hyper-partisanship to a 50-year campaign to curb what was then seen as an activist court. The organized pushback included the Supreme Court’s own action more than a decade ago that made it essentially impossible to get the “clear statement from Congress” that same court is now demanding.
“The decision in Citizens United v. FEC, in 2010, empowered corporations to game our political system at will,” he writes. “That explains, in part, why Congress has not passed a real climate bill in decades.”
Grist is also following that story.
There’s lots more legal action ahead, McKibben says. “A train of similar cases now approaches the high court—they would, for instance, make it all but impossible for the federal government to regulate tailpipe emissions or to consider the financial toll of climate change when deciding whether to approve a new pipeline,” he writes. The New York Times recently revealed that the plaintiffs in those cases “are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.”
‘The Climate Math Gets Harder’
The Supreme Court ruling does not stop action on U.S. emission reductions in its tracks. For many legal observers who’d spent nerve-wracking days constantly refreshing their browsers whenever a decision seemed imminent, this wasn’t the worst possible outcome.
“Seeing some misleading media accounts suggesting EPA now can’t regulate GHGs,” tweeted Harvard Law climate specialist Jody Freeman. “That’s NOT true. EPA can regulate GHGs under the Clean Air Act, set standards for cars/trucks; oil and gas; AND new & existing power plants. Can’t do generation shifting—which EPA already expected.”
The ruling “preserves large swaths of EPA authority to regulate greenhouse gases across a range of sources,” UCLA School of Law professor Cara Horowitz told the Washington Post. “In some ways I’m actually relieved. With this court we were bracing for almost anything, so this could have been worse.”
But still, “the climate math just got harder,” the Times writes, in the wake of a “major setback to the U.S.’s ability to keep its promises to reduce greenhouse gas emissions.” The decision to “clip the EPA’s powers to rein in planet-warming pollution from power plants comes despite a shrinking window to prevent the worst consequences of climate change,” BNN Bloomberg says.
“Regulating greenhouse-gas emissions from the electricity sector, and point-source emitters like power plants in particular, is arguably the `lowest hanging fruit’ in mitigating climate change,’’ said UCLA climate scientist Daniel Swain. “If we can’t make rapid progress on the easiest aspects of emissions reductions in the short term, that does not bode well for reaching any number of optimistic climate targets in the coming decades.”
The EPA “still maintains the ability to regulate emissions from individual power plants, but now must move forward with more caution,” Bloomberg adds. “Even before the ruling, EPA officials were planning new rules to regulate plant emissions, taking a narrower approach that would be focused squarely on coal- and gas-fired power plants, without bringing in non-emitting renewable electricity.”
In light of the Supreme Court ruling, “it seems likely that the narrow approach will be the clearest path forward.”
A ‘Gut Punch’ to Climate Policy
But even if the ruling was expected, even if it was more benign than many court-watchers feared, it still produced a wave of reaction at a time when the world’s biggest historical carbon polluter is behind schedule, politically gridlocked, and losing whatever international credibility it hoped to regain on its response to the climate emergency.
The ruling “infuriated President [Joe] Biden and environmentalists, who said it raised formidable obstacles to the United States meeting its climate goals, including the president’s goal of running the U.S. power grid on clean energy by 2035,” the Washington Post writes.
“The supreme court’s ruling in West Virginia v EPA is another devastating decision that aims to take our country backwards,” Biden said in a statement. “While this decision risks damaging our nation’s ability to keep our air clean and combat climate change, I will not relent in using my lawful authorities to protect public health and tackle the climate crisis.”
“Today’s ruling by a radical, pro-pollution Supreme Court strikes a severe blow to the @EPA’s authority to do its duty: to protect the environment,” tweeted House Speaker Nancy Pelosi (D-CA). “In doing so, the Court has bowed to polluters who seek to poison the air our children breathe & the water they drink with impunity.”
“Six right wing extremists on SCOTUS [the Supreme Court of the United States] have dismantled the EPA’s ability to fight climate change by taking away their ability to devise emission caps based on the Clean Air Act,” tweeted Rep. Ro Khanna (D-CA). “This is a crisis of legitimacy. Time to put everything on the table. Term limits for justices. Now.”
“The court’s ruling constrains any effort to tighten restrictions on carbon dioxide emissions from power plants,” the New York Times editorialized. “It also threatens the Biden administration’s ability to impose new limits on tailpipe emissions from cars and trucks and on methane emissions from oil and gas facilities. As the three members of the court’s liberal minority wrote in a stinging dissent, the majority’s decision strips the EPA of the power ‘to respond to the most pressing environmental challenge of our time’.”
“It feels like a gut punch to critical efforts to combat the climate crisis which has the potential to place lives at risk for decades to come,” University of Georgia meteorology professor Marshall Shepherd, a past president of the American Meteorological Society, told AP.
“Global climate change is the underlying environmental challenge of this day and age,” said Frank Rambo, senior attorney at the Southern Environmental Law Center. “And the U.S. is the leading contributor to that globally. The ability of our federal government to get a handle on our contribution to climate change is what’s at stake.”
On that score, the U.S. can expect to pay a heavy price at the international level, where Climate Home News says frustration with the country’s uneven response to the climate emergency is turning into anger. Climate negotiators and observers told “of being ‘disappointed’ and saw the ruling as further weakening the U.S.’ credibility on climate action—already damaged by former Republican presidents’ record of blocking international climate action, from George W. Bush’s refusal to endorse the Kyoto Protocol to Donald Trump’s withdrawal from the Paris Agreement,” the UK-based publication writes.
“This shocking decision is unfortunately a reflection of the decades-long influence of the fossil fuel industry on U.S. politics,” said Climate Analytics CEO Bill Hare. “This is nothing new to the rest of the world: over the past 30 years there’s been blow after blow delivered, either in terms of failure on the part of Congress to take action, or legal challenges to climate policies.”
“The world is getting tired of this,” agreed Alden Meyer, senior associate with the E3G climate consultancy.
“Just when the rest of the world thought that the U.S. is ‘back’ on climate leadership, the [Supreme Court] decides otherwise,” said Esther Tamara, a researcher at the Foreign Policy Community of Indonesia. “America is now back [to] the drawing board.”
The ruling “will no doubt be noticed by Beijing and feed into its long-standing perception that significant U.S. federal action is not possible,” said Li Shuo, climate advisor at Greenpeace East Asia. That conclusion “will further limit the potential of U.S.-China bilateral climate talks, and it only highlights the importance of both countries getting their own house in order.”
Next Up: Thursday’s Energy Mix will dig into the options still available to regulate U.S. carbon pollution. If you aren’t already a subscriber, make sure you don’t miss out.