This term, alongside a number of cases with the potential for seismic implications, the Supreme Court also took up West Virginia v. Environmental Protection Agency. Though the case caught fewer headlines, it, too, threatened Earth-shifting implications all its own by thrusting into question a critical EPA lever for addressing climate change.
Now we have that decision in hand, and with it the dismal confirmation that indeed, another seismic shift has just occurred.
Simply by taking West Virginia v. EPA the Supreme Court signaled ominous things to come. That’s because the case, which was about the nature and scope of EPA authority in regulating carbon emissions from existing power plants, turned on a rule that does not exist. And so just by hearing it, members of the Supreme Court seemed to tip their hand, signaling a majority actively on the hunt for a chance to slash away at the government’s ability to advance vital environmental and public health safeguards.
Unfortunately, those ominous signs were right on the mark. Because while this decision does still recognize EPA’s authority to regulate greenhouse gas emissions, it simultaneously sharply curtails the agency’s ability to do so.
Yes, after this decision, there’s still room for EPA to act when it comes to driving down carbon emissions from the power sector — and Administrator Regan promised to use the full scope of those authorities in a statement in response. We’ll be pushing hard for EPA to live up to that commitment and cover as much ground as it can with the authority it retains.
While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change.
My full statement ⬇️ pic.twitter.com/wGx14YQxzt
— Michael Regan, U.S. EPA (@EPAMichaelRegan) June 30, 2022
But there’s no denying that at the same time, with this decision the Court has made it far harder for the agency to set effective power sector standards based on established clean energy solutions; has further tipped the scales in favor of polluters, not people; has taken another step down the path paved by fossil fuel interests, for fossil fuel interests — and has aggressively signaled that there’s more of that to come.
What the Supreme Court decided in West Virginia v. EPA
First and foremost, despite some fossil fuel interests swinging for the fossil fuel-favored fences, the Supreme Court’s decision in West Virginia v. EPA did not revoke EPA’s underlying authority to regulate greenhouse gas emissions under the Clean Air Act.
While this authority — itself rooted in a prior Supreme Court decision, the 2007 Massachusetts v. EPA — should never have been in question, it’s a testament to the trajectory of this Court that after this term, it registers as relief to still see that authority recognized.
But that’s about where the good news ends.
Because for the power sector, after the question of whether EPA can regulate greenhouse gas emissions comes the question of how. And here, the Court has struck a devastating blow.
Instead of recognizing Congress’s purposefully forward-looking construction of Section 111 of the Clean Air Act, which intentionally empowered EPA with broad flexibility in setting standards to ensure that the agency could continue to act on the best available science and emerging solutions over time, this majority instead suddenly asserted that EPA’s authority in setting such standards is in fact narrow and closed.
In practice, this means that instead of EPA setting power plant standards based on the full suite of clean energy technologies available to the power sector — not least of which would include renewable resources like wind and solar — the Court is now forcing EPA to take a blinkered approach, with emission reduction requirements based only on tinkering at the facility margins as opposed to the system as a whole.
As the dissent wrote in protest:
“A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed — and the power granted — to curb the emission of greenhouse gases.” — Justice Kagan, dissenting
Ultimately, it takes a forced and motivated reading of the Clean Air Act to arrive at the majority’s conclusion, but as was the case with this case from the start, the majority was clearly on a mission to advance a specific and broader agenda, employing a new means — the so-called “major questions doctrine” — by which it can selectively curtail administrative authority moving forward. This will threaten rulemaking authority not just across EPA, but the whole of the federal government; in other words, a staggering array of federal rules are now potentially vulnerable to a subjective veto by the least publicly-accountable branch of government.
What this decision means for the climate
The power sector is the nation’s second-largest source of greenhouse gas emissions, and every path to meeting our nation’s climate targets — be it 50-52 percent below 2005 levels by 2030 or net-zero by mid-century — relies on a cleaned-up power sector doing an outsized share of the work.
That’s for two reasons.
First, by cleaning up the power sector we can address not just the enormous amount of emissions coming from coal and gas plants but also the emissions coming from a range of other economic sectors, too, by enabling the clean electrification of current fossil fuel uses in transportation, buildings, and broad swaths of industry.
Second, the solutions for cleaning up the power sector are proven and affordable, which means that turning to abundant clean electricity is repeatedly found, across modeling effort after modeling effort after modeling effort, to present the very best chance at driving that broader economy-wide change.
In short: We need to clean up the power sector as much as we can, as fast as we can, to have any chance at staving off the worst of climate impacts. And all signs point to the fact that technically, economically, we can.
But will we?
After West Virginia v. EPA, that foundational requirement of the broader climate agenda just became harder to achieve.
That’s because while the clean energy transition is rapidly underway, it’s still too slow across the board and in far too many places, the fossil fuel industry continues to dig in and fight all attempts at change.
EPA standards should provide a means of overcoming such fossil fuel intransigence; now, however, with a majority decision that hewed closely to the long-laid plans of fossil fuel interests and the politicians fiscally intertwined with them, while EPA must still move forward with as robust a set of standards as possible, that leverage has been curtailed.
As a result, the burden of achieving sufficient climate action will become heavier on all the rest — on towns, on states, on regions, on Congress. And it is Congress in particular that must move fast in the face of this ruling to deliver necessary change, which it can by finalizing the under-negotiation budget reconciliation package with a robust suite of climate and clean energy investments included.
In the aftermath of this decision, our climate simply cannot afford another climate miss.
Putting this decision in context
This June, the Supreme Court issued a raft of decisions that fundamentally reconstituted core foundational tenets of our society.
The majority decision in West Virginia v. EPA represents one more.
We now have a Court that has positioned itself, not Congress, as a policymaking body, and itself, not agencies, as the technical expert.
The implications promise to reverberate far beyond the realm of power plants, and far beyond the realm of EPA.
The consequences will be profound — for climate, for people, for science, for progress.
Indeed, with West Virginia v. EPA, we have yet another Court-forced seismic shift, and yet another clarion call that things are not okay.
Do not let that call be met with silence in response; help us fight back today.
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