(Beyond Pesticides, July 8, 2022) Among the multiple, wrenching decisions handed down by the Supreme Court of the United States (SCOTUS) in a week-long tranche (June 24–30) was one that limits the ability of the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide (CO2) emissions from power plants. The decision may also, and with much broader implication, call into question the established authority of federal agencies to promulgate regulations not specifically authorized by Congress, but related to their overall mission to protect health and the environment. In this respect, the current court majority of six, arguably very conservative, justices has thus dealt a serious-though-not-fatal blow to EPA’s ability to carry out efforts to thwart the existential climate crisis and other crises on the short horizon, such as biodiversity collapse. The court has left these science-based decisions and strategies to a body locked in political logjam—the U.S. Congress. As Chief Justice John Roberts opined for the majority, “A decision [on carbon emissions] of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.â€
Beyond Pesticides and other health, environmental, and environmental and climate justice advocates, as well as Democrats across the country, are decrying the 6–3 decision, given that the climate crisis rages on and the need for ambitious greenhouse gas reductions is paramount.
The case, West Virginia et al. v. Environmental Protection Agency et al. (WV v. EPA), is actually a group of cases bound together by their common target — EPA and its proposed, but never enacted, Clean Power Plan. Plaintiffs suing EPA, in addition to West Virginia, include North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings — unsurprisingly, coal companies and states whose economies are significantly bound up with the coal industry.
The SCOTUS decision finds that EPA does not have the authority to implement, as the nonprofit Clean Air Task Force explains, “the best system of emission reduction underlying the Clean Power Plan (shifting generation from higher emitting sources to lower emitting sources, including sources technically outside the regulated industry, like solar and wind on the grid).†Many pundits have noted that WV v. EPA is, fortunately, a relatively narrow ruling; it undercuts an important tool in the agency’s kit bag, but as multiple advocates have pointed, still leaves other pathways through which EPA can address the emissions from fossil-fueled power generation plants.
A short explainer: specifically, the decision strikes down the 2015 Clean Power Plan (CPP), which was rationalized on the basis of the tenets of the Clean Air Act, and established guidelines for states in their efforts to limit CO2 emissions from existing power plants. In 2016, SCOTUS blocked CPP from being enacted; this is an important point that will be discussed below.
The WV v. EPA ruling relies on an elaboration and application of the “major questions doctrine,†which the Supreme Court has previously asserted to mean that if a federal agency seeks to decide on or regulate an issue of major national importance, such action must be supported by clear statutory authorization. The Congressional Research Service website page on the doctrine does note that SCOTUS “has never used that term in a majority opinion.†As we repeatedly note, and the dissenting Justices and others point out (see below), the CPP has never been in effect, so no one is or has been, subject to or harmed by its terms. This decision was perhaps a “solution†in search of a problem; the political and “prophylactic†nature of the ruling seems obvious.
In the WV v. EPA case, according to the website JDSupra: “The Court held that Clean Air Act Section 111(d), 42 U.S.C. § 7411(d), a rarely used statutory provision, was not sufficient to support a rulemaking that ‘restructure[ed] the Nation’s overall mix of electricity generation.’ Because the Court determined this result would carry consequences of economic and political significance, the Court found the rule triggered the ‘major questions’ doctrine. The Court reiterated that although Section 111(d) authorizes EPA to establish emission guidelines for existing major sources of air pollution based on BSER [best system of emission reduction], the Agency could not do so using such transformative measures.†It bears repeating that in this case, Chief Justice John Roberts opined for the majority, “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.â€
Response from the universe of advocates and elected officials has been immediate and vigorous — though the statement by EPA Administrator Michael Regan sounds a tad pro forma for this moment: “As a public health agency, EPA’s number one responsibility is to protect people’s health, especially those who are on the front lines of environmental pollution. Make no mistake: we will never waver from that responsibility. 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.â€
Others are charging that the decision will make the climate crisis and air pollution even worse, particularly for those already most affected — communities of color, low-income communities, and fenceline communities located near power generation plants. Assistant Director of Law and Policy at the Deep South Center for Environmental Justice, Monique Harden, told the Associated Press that this ruling “denies relief to Black and other communities of color as well as poor communities disproportionately exposed to power plant pollution and vulnerable to climate change.â€
The Sierra Club issued a statement: “This is a deeply disappointing and dangerous decision that eliminates EPA’s most effective tool for reducing harmful climate pollution from existing power plants. [It] gives coal executives and far-right politicians exactly what they asked for by frustrating EPA’s efforts to set strong, effective carbon pollution standards from power plants that would help protect our communities and families. . . . [T]oday’s decision accommodates the powerful instead of the people by seriously narrowing that authority. As scientists warn that we are running out of time to combat the climate crisis, no one should be making it harder for our government to use effective tools to protect our families and communities. . . . [It] is up to Congress and the Biden Administration to act quickly to pass bold climate legislation — our future depends on it.â€
U.S. Representative Jamaal Bowman of New York, in a press briefing with the Green New Deal Network, pointed to the possibility that the decision could lead to destructive precedent, given the “major questions doctrine†cited by the conservative majority. He said, “This ruling could potentially undermine all kinds of regulations that are about saving lives and promoting well-being. We cannot, we must not, and we will not let this court stop us. The Biden administration must declare a climate emergency immediately and use every single power at its disposal.â€
The Washington Post’s Climate 202 feature wrote, in a piece titled, “The Supreme Court’s EPA ruling was the beginning of something bigger,†that the SCOTUS decision is being celebrated by Republican attorneys general and conservative legal activists. “In particular, they celebrated the court’s embrace of the ‘major questions doctrine.’ . . . However, their celebration didn’t last long before they began plotting ways to challenge other environmental regulations on similar grounds, setting up a larger legal showdown over the federal government’s ability to address the climate crisis.†Therein may lie the even larger and looming threat of this decision.
Senator Ed Markey of Massachusetts asserted, “It is our responsibility to respond at this time because we cannot allow those who are most vulnerable to pay this price. It’s up to those of us who have been given some power, given some privilege to now stand up, shoulder to shoulder with them, to engage in this fight.†Representative Steny Hoyer of Maryland added, according to Roll Call, “‘As Justice Kagan points out in her dissent, the Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. That is not how our system of checks and balances works,’ he said, adding that the Senate should ‘act on legislation to address the existential threat posed by the climate crisis.’â€
JDSupra identifies key takeaways from this SCOTUS decision, including: the “major questions doctrineâ€; immediate impact on the scope of the Biden Administration’s approach to regulating power sector greenhouse gas (GHG) emissions; the critical role of Congressional action; the decarbonization underway (at a rate faster than provided for by the CPP), largely for economic reasons; and the authority of states to act on GHGs.
Justice Elena Kagan wrote the dissenting opinion in the WV v. EPA case, joined by Justice Stephen Breyer and Justice Sonia Sotomayor. That opinion, as well as a January 2022 amicus brief (see below for both), identifies one of the strange realities of this decision: it strikes down a regulation promulgated under the Clean Power Plan (CPP) — a regulation that’s never even been enacted. That dissent begins (p. 57): “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.â€
The opinion includes other pithy commentary (case citations are here omitted but are available in the decision document): “Congress charged EPA with addressing . . . [the] potentially catastrophic harms [of the emission of greenhouse gases like carbon dioxide], including through regulation of fossil fuel–fired power plants. 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. Carbon dioxide and other greenhouse gases fit that description. . . . EPA thus serves as the Nation’s ‘primary regulator of greenhouse gas emissions.’â€
The dissent continues: “This Court has obstructed EPA’s effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts. . . . The effect of the Court’s order, followed by the Trump administration’s repeal of the rule, was that the Clean Power Plan never went into effect. The ensuing years, though, proved the Plan’s moderation. Market forces alone caused the power industry to meet the Plan’s nationwide emissions target—through exactly the kinds of generation shifting the Plan contemplated.
“So by the time yet another President took office, the Plan had become, as a practical matter, obsolete. For that reason, the Biden administration announced that, instead of putting the Plan into effect, it would commence a new rulemaking. Yet this Court determined to pronounce on the legality of the old rule anyway. But the Court’s docket is discretionary, and because no one is now subject to the Clean Power Plan’s terms, there was no reason to reach out to decide this case. The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. . . . But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.â€
To that last point, in January this year, Senators Whitehouse, Blumenthal, Sanders, and Warren filed an amicus curiae brief in the case. The Summary of Arguments in that brief identifies the dissenting Justices’ last point, and is a fairly trenchant account of how this case came to be, and what a politically driven decision the SCOTUS majority has delivered. We reproduce it here:
“American success in the 20th and 21st centuries owes much to the administrative agencies that enabled and facilitated these accomplishments. Metrics that boomed in the 20th century, from average lifespan to economic productivity, were made possible by a slew of new regulations aimed at protecting the public welfare. As the excesses of powerful industries were reined in, however, these same regulations fostered resentment among those seeking to operate without such restraint.
“These cases are the direct product of that resentment. Almost everything about these cases— the theories, the arguments, and even many of the parties and amici curiae—is an industrial product manufactured in an effort to return to an era free from oversight by the government. The theories and arguments were incubated, grown, propagated, and distributed by a well-funded apparatus that has selfish and destructive goals. These industry interests hope to cripple the federal government’s ability to regulate them by fostering hostility toward what they pejoratively call the ‘administrative state.’ Their efforts, carried out by their front groups, proliferate through the political process, through faux intellectual ideas and grassroots campaigns, strategic appointments and policy proposals in the executive branch, and massive campaign contributions to those running for Congress.
“Most important here, there is no extant regulation to challenge, so there is no case or controversy. The Court should work to restore the public’s faith by rejecting this blatant, political policy agenda, and dismiss these cases.â€
Yet here we are. Beyond general shock at the decision, there is broad and rapid and focused attention being paid to how EPA can regulate CO2 (and other greenhouse gas emissions). The SCOTUS ruling asserts that the Clean Air Act does not give EPA broad authority to regulate emissions from plants that contribute to global warming, but does not prohibit EPA from regulating carbon emissions. Indeed, in writing the majority opinion, Chief Justice John Roberts said (p. 37), “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.’†(How much that last phrase — “crisis of the day†— was meant as snark is unclear, but many have reacted to it as stunningly dismissive of the existential climate emergency.)
The Center for Biological Diversity (CBD) points squarely at how to progress: “A nationwide greenhouse gas pollution cap under the Clean Air Act is a central component of the progressive Climate President action plan and model executive order, spearheaded by [CBD] and supported by hundreds of climate and environmental justice groups. [CBD] and more than 1,200 groups in the People vs. Fossil Fuels coalition have called on [President] Biden to declare a national climate emergency and take swift executive action to reject new fossil fuel leases, infrastructure and exports. Under existing law, the President can also restrict international fossil fuel investment and rapidly manufacture and distribute renewable energy systems. All these powers remain intact after West Virginia v EPA.â€
Climate strategist Mary Anne Hitt Tweeted a robust thread on what’s possible and perhaps likely, saying “Remember — coal (and increasingly gas) power plants can’t compete with renewable energy and SCOTUS won’t change that. This @EnergyInnovLLC report found 80% of U.S. coal plants are already more expensive to run than replacement with local renewables. Utilities keep announcing coal retirements (or are being driven into bankruptcy by hanging onto coal) — GA Power, Duke, AES, etc. None of those decisions were driven by greenhouse gas regulations. Market pressure from cheap renewables will continue. Meanwhile, states keep locking in renewable energy mandates; 1 in 3 Americans live[s] in a place committed to 100% clean energy, and in just the past year states including MD, CT, and RI have joined the list of those with strong 100% laws on the books. Finally, as director of @BeyondCoal at @SierraClub for a decade, I can assure you the thousands of tenacious advocates who have so far retired two-thirds of U.S. coal plants (357 and counting) won’t stop until this nation is powered with clean energy.â€
As David Pomerantz, executive director of the Energy and Policy Institute, said on Twitter, “If you’re the kind of person who is concerned about climate change and dismayed by today’s court decision, tomorrow’s a great day to find an organization in your state that’s working at the legislature or Public Utility Commission to speed up the transition to clean energy.â€
Beyond Pesticides Executive Director Jay Feldman summarizes the confluence of work in organics and the role of federal agency — EPA — action, saying: “There are parallels between federal executive (and now judicial) response to the climate crisis and our work with organics — primarily in opposition to bad and inadequate decisions by EPA (and USDA and other federal agencies). The market is driving change in the absence of responsible governmental action, but it takes an informed populace to take matters into its own hands and demand responsible corporate behavior by purchasing only from those companies that are operating sustainably.†This is more challenging on the energy front, given that energy providers have virtual hegemony over markets in much of the country. Nevertheless, local governments and households can shift to solar and wind and remove fossil fuel-based products from their purchasing, can make more-sustainable choices (i.e., organic) in the food and agricultural products they purchase.
He continues, “Obviously, the most efficient and comprehensive approach to taking on the existential public health, biodiversity, and climate crises is to have strong federal standards that protect all people and the environment. Absent that, there is important work to done in the marketplace, through local government, and at the state level.†And as noted above, there are pathways forward for EPA to regulate carbon in the face of the climate emergency. But we, the American public, must advocate vociferously for them, because the swelling forces on the political right — now enshrined in the U.S. Supreme Court majority — appear to have little interest in the protection of people and planet.
Source: https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
