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U.S. Looks to Other Options After Supreme Court Undercuts EPA Carbon Rules

Second part of a two-part series.

In the wake of last week’s Supreme Court decision limiting government regulation of U.S. greenhouse gas emissions, climate analysts and campaigners are now turning to other legislative options, state and city governments, market forces, and ultimately the ballot box for solutions.

“This is a very limited decision,” Michael Gerrard, founder and faculty director of Columbia University’s Sabin Center for Climate Change Law, told Bloomberg. “It doesn’t undercut EPA’s other authorities to regulate greenhouse gases, such as imposing limits on motor vehicles (the largest source of GHG emissions), factories, and oil and gas production. EPA also has other tools to control pollution from coal-fired power plants.”

Ample Authority

Clean Air Task Force lawyer Jay Duffy agreed the EPA still has “ample authority to set stringent standards based on pollution control technologies such as carbon scrubbers and gas and hydrogen co-firing,” technologies that “can reduce emissions to near zero and would put the costs of pollution cleanup on industry instead of public health and the environment.”

“EPA could still adopt technological standards and impose those on fossil fuel plants,” Matthew Price, a partner in the law firm of Jenner & Block, told Utility Dive. “The owners of those plants could comply in whatever way they want[ed], whether that’s through generation shifting or otherwise, but the standard would be set based on something that the plant could do to reduce its emissions.”

The Supreme Court ruling “just means the EPA needs to approach its goals in a more conventional way, and it still has quite a broad range of options to do that,” he added.

Section 115 of the Clean Air Act also “requires EPA to regulate international air pollutants upon receipt of ‘reports, surveys, or studies’ from an international agency that indicate that air pollutants emitted in the U.S. could ‘reasonably be anticipated to endanger public health or welfare in a foreign country’,” writes climate journalist Amy Westervelt on the excellent Hot Take blog [subs here].

“The Intergovernmental Panel on Climate Change (IPCC) reports and their increasingly urgent warnings would certainly seem to qualify.”

Right Idea, Wrong Legislation?

Over a span of months or years, there’s serious concern that the legal philosophy the court’s six extremist judges are espousing will lead to a broad swath of deregulation, across a range of U.S. environmental laws and beyond. But in the lead-up to last week’s decisions, a group of climate hawks led by former NASA scientist James Hansen had already petitioned the EPA to regulate greenhouse gases “under a law no one has yet applied to climate change, the Toxic Substances Control Act,” the Drilled podcast reported June 16.

U.S. law gives the EPA 90 days to respond to the petition “with a determination as to whether carbon dioxide, methane, and other heat-trapping gases pose ‘an unreasonable risk of injury to health or the environment’,” the Washington Post wrote last month. After that, “EPA would have to formulate and implement rules that could, for example, impose a fee on carbon emissions—and also require companies to remove carbon from the atmosphere they have already expelled.”

The authority to regulate carbon pollution under the TSCA “has been hiding in plain sight the entire time,” Viviani told Drilled.

“There was sort of a perceived wisdom” that the legislation wouldn’t serve the purpose, he explained, after the agency lost a landmark ruling on asbestos regulation. That particular loss “was actually the Agency’s fault because they didn’t do their due diligence,” he said, but after the asbestos decision “they kind of threw up their hands and said ‘we have to work under the Clean Air Act’, which is an abysmal law.”

The TSCA, on the other hand, “is well situated to serve as a foundational statute for a wide-ranging decarbonization effort in the United States because of its very strong language,” attorney Dan Galpern, executive director and general counsel of the non-profit Climate Protection and Restoration Initiative, told Drilled. “What is needed now is not merely a tinkering at the edges, but restrictions to the point of prohibition, to the point of a phaseout of greenhouse gas emissions sources, at least the major ones,” to push past net-zero emissions and bring the U.S. to net-negative by mid-century.

“This sort of problem is exactly the thing TSCA was designed for,” Viviani added. “Congress knew that there were problems out there that a single program couldn’t handle and that we needed something more expansive. It was designed to take care of things that the other laws weren’t properly taking care of. And if you look back at the history of climate, it’s quite clear that none of the other laws are taking care of this.”

The wave of reaction to the ruling also points to the many forces for climate action that a panel of nine judges can’t control.

Coal Is Already Ending

The United States is already well on its way to phasing out coal-fired power plants, and if regulation doesn’t speed that process, market forces will. U.S. coal extraction fell by just over 35% between 2015 and 2021, the U.S. Energy Information Administration reports [pdf]. The drop in coal’s share of U.S. power production is tracking ahead of the targets in the Obama-era Clean Power Plan that was the focus of the Supreme Court case, West Virginia v. EPA. And the U.S. Sierra Club’s Beyond Coal campaign says the country has already shut down 357 coal-fired power plants, with just another 173 to go, the Washington Post reports.

Utility executives told the Post they saw nothing in the ruling that would change their coal phaseout plans. “Over time it’s clear for reasons largely unrelated to regulations that the U.S. power sector is moving away from coal,” said conservative environmental lawyer Jeffrey Holmstead. “In my world it is astonishing.”

But the pace of change might yet be the key issue. “The question is no longer whether the way we produce energy will be fundamentally transformed, but how quickly that will happen,” said Harvard Law School professor  Richard Lazarus. “And, for the climate issue now, the pace of change may well be the ballgame.”

Cities and States Step Up (Again)

U.S. cities and states are ready to step up and fill the gap as best they can—though many of them are none too happy about it.

“Across the country, communities and states are accelerating their efforts to fight climate change as action stalls on the national level,” the New York Times reports. “During the Trump administration, which aggressively weakened environmental and climate protections, local efforts gained importance. Now, experts say, local action is even more critical.”

The “patchwork approach is no substitute for a coordinated national strategy,” the Times warns. But as policy and political options narrow in Washington, DC, “states are really critical to helping the country as a whole achieve our climate goals,” said Kyle Clark-Sutton, manager of the analysis team at the Rocky Mountain Institute (RMI). “They have a real opportunity to lead. They have been leading.”

Citing a series of RMI state scorecards, the Times lists New York and traditionally coal-friendly Colorado as states that are on track to cut their electricity emissions by 80% or more by 2030. “By removing partisan politics from community discussions about climate policy, it’s sometimes possible to reach a consensus that’s been difficult to achieve on a national level,” the news story states.

But a joint statement from the U.S. Conference of Mayors and the National League of Cities cast the court decision as “a major step back in our fight to keep our communities safe from the devastating effects of the climate crisis,” Utility Dive writes.

“Many cities throughout the country have been aggressively trying to decarbonize their buildings and transportation through new regulations and standards, as they battle floods, hurricanes, blizzards, droughts, wildfires, and heat that have become more frequent and intense due to climate change,” the industry newsletter adds, citing an amicus brief the two organizations filed in the Supreme Court case. “But local governments rely on federal regulation to supplement and support their own initiatives and placing limits on the EPA would restrict the tools federal, state, and local governments have to address power plants’ greenhouse gas emissions in a cost-effective manner.”

The net result is that “cities are going to be left holding the bag, dealing with adverse health outcomes of the dirty air and dirty water, while our federal agencies that have the expertise and resources to promote and enforce standards are having to basically play ‘mother, may I’ with a Congress that is already deeply gridlocked on so many issues,” Kate Wright, executive director of Climate Mayors, a bipartisan network of more than 470 municipal leaders across the U.S., told Bloomberg CityLab.

“If we think about the total U.S. portfolio and trying to reduce emissions across the country, there’s only so much you can achieve without having a national strategy,” David Konisky, professor of public and environmental affairs at Indiana University, told The Guardian.

No More Need to Pretend

Some U.S. environmentalists and many of their Democratic Party allies are already shifting their emphasis to the state and local level—just as they did when the Supreme Court’s enabler-in-chief, Donald Trump, entered the White House. Even before the court decision, “Democrats’ ambitious plans for hundreds of billions of dollars’ worth of climate action wilted in the Senate,” Politico writes.

“There’s lots of tension around what comes next. I think the power is going to be outside of Washington,” said Christy Goldfuss, a former White House official now working at the U.S. Center for American Progress.

“We don’t have to pretend anymore that this is a country that’s united,” added Elizabeth Yeampierre, executive director of Brooklyn-based environmental justice organization UPROSE.

“Congress is not exactly a productive place these days,” acknowledged Rep. Jared Huffman (D-CA), but “climate activists cannot ignore DC. They just have to recalibrate.”

Deregulatory Fight Delivers…Worse Regulation?

Paradoxically for the Republican governors who instigated the West Virginia case, the net result of last week’s ruling might be to make climate regulation in the U.S. even less palatable to their fossil industry patrons. In the wake of the ruling, the EPA can still force significant emission reductions, “but it will be more costly and less effective,” said Clean Air Task Force lawyer Jay Duffy.

“The options that are left for EPA, ironically, could be more restrictive and more expensive for the power sector than the cap-and-trade approach that the Supreme Court said was clearly outside the agency’s authority,” Inside Climate News reports. “Such an approach would have set carbon limits for each state, allowing them to shift electric generation to cleaner sources of power.”

But the court went in another direction, ruling that the law only allows EPA to “impose limitations on emissions within the fenceline of each individual power station,” Inside Climate explains—precisely the kind of direct micromanagement the industry says it abhors.

“This approach that’s left under the Clean Air Act, while it can be quite effective still, is going to be less flexible, potentially,” said David Doniger, senior strategic director for climate and energy at the Natural Resources Defense Council. “And it could have the unexpected effect of making the control of these emissions more expensive than it needed to be.”

Neil Chatterjee, the Trump-era chair of the U.S. Federal Energy Regulatory Commission, said the ruling might favour market-based solutions like a price on carbon. “This was a pretty strong signal from the court that the regulatory state is not the place in which we should be making policies regarding carbon mitigation,” he told Utility Dive.

Unfinished Business

Meanwhile, with U.S. mid-term elections just four months away, Westervelt acknowledges the unfinished business behind the Supreme Court decision—that notwithstanding the court’s own decisive role in empowering the industry lobbyists driving climate gridlock in Washington, DC, the U.S. Congress has consistently failed to take action on the climate emergency.

“Which doesn’t mean that we throw up our hands in despair so much as that we prepare for the literal fight of our lives,” she writes. “If you need to despair for a bit, take that time, but please, come back ready to fight—and organize and vote this November. Because actually the easiest way to curb SCOTUS’s power is a Congress that will pass climate legislation.”