ABOLISH SCOTUS
The Supreme Court has curtailed EPA's power to regulate carbon pollution – and sent a warning to other regulators
Patrick Parenteau, Professor of Law, Vermont Law School
Thu, June 30, 2022
Smokestacks at the coal-fired Mountaineer power plant in New Haven, West Virginia.
In a highly anticipated but not unexpected 6-3 decision, the Supreme Court ruled on June 30, 2022, that the Obama adminstration’s Clean Power Plan exceeded the U.S. Environmental Protection Agency’s authority under the Clean Air Act.
The ruling doesn’t take away the EPA’s power to regulate carbon emissions from power plants, but it makes federal action harder by requiring the agency to show that Congress has charged it to act – in an area where Congress has consistently failed to act.
The Clean Power Plan, the policy at the heart of the ruling, never took effect because the court blocked it in 2016, and the EPA now plans to develop a new policy instead. Nonetheless, the court went out of its way to strike it down in this case and reject the agency’s interpretation of what the Clean Air Act permitted.
Having said what the EPA cannot do, the court gave no guidance on what the agency can do about this urgent problem. Beyond climate policy, the ruling poses serious questions about how the court will view other regulatory programs.
Remaking the electricity sector
The Clean Power Plan would have set targets for each state to reduce carbon dioxide emissions from electric power plants. Utilities could meet these targets by improving efficiency at existing coal-fired power plants and by “generation shifting” – producing more power from natural gas and renewable sources like wind and solar.
In the EPA’s view, this sectorwide shift to cleaner sources represented the “best system of emission reduction,” a statutory term in the 1970 Clean Air Act. Coal companies and Republican-led states contended that the changes the agency envisioned exceeded its authority.
Chief Justice John Roberts framed the issue as a “major question,” a doctrine that the court has invoked in only a handful of cases. It holds that agencies may not regulate on questions of “vast economic or political significance” without clear directions from Congress.
In the most prominent example, in 2000 the court invalidated the Food and Drug Administration’s attempt to regulate tobacco. The ruling held that this had never been part of the agency’s mission, no law gave the FDA clear authority over tobacco, and Congress had not directed the FDA to take such action.
The major question doctrine builds on a more established but increasingly disfavored principle of administrative law, Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. In my view, however, the Supreme Court is using the major question doctrine to take on authority to decide what Congress meant, without regard to the agency’s expert views or policy judgments.
A rebuke to EPA
In one sense, the majority opinion is fairly narrow. As Roberts writes: “[T]he only interpretive question before us, and the only one we answer, is … whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority” of section 111 (d) of the Clean Air Act.
The majority’s answer was no.
Citing its ruling in a 2014 air pollution case, the court said that the EPA’s interpretation of “best system of emission reduction” amounted to a “claim to discover in a long-extant statute an unheralded power” representing a “transformative expansion in its regulatory authority.” Essentially, the majority found that the EPA had proposed a sweeping national makeover of the electric power industry.
Roberts characterized section 111 (d) as a “backwater” provision of the Clean Air Act that had never been used to adopt a rule as broad and with such “vast economic and political consequences” as the Clean Power Plan.
Although West Virginia and the others who sued argued that the EPA had no authority to regulate emissions “beyond the fenceline” of individual plants, the Court did not constrain the agency that tightly. Roberts also noted that the EPA’s authority was not limited to plant-specific technological controls. This suggests that the court is leaving the door open for some regulation beyond the fenceline.
In a lengthy and acerbic dissent, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, argued that the text, context, history and purpose of the Clean Air Act, as well as common sense and the scientific imperative of dealing with climate change, supported the EPA’s position. “The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening,” Kagan concluded.
What can the EPA do now? Its options appear limited. The agency can require existing coal-fired plants to operate more efficiently, but that would extend the plants’ useful lives, with negative effects on nearby communities from pollutants that the plants emit.
Theoretically, the EPA could require every coal-fired power plant to install carbon capture and storage technology. This is the kind of technological control that the agency has long required for air pollution sources. But the costs, especially for retrofitting existing plants, are prohibitive, and utilities would surely challenge the technology as not “adequately demonstrated,” as required by section 111 (d).
Another option would be to require retrofitting coal plants to allow co-firing with natural gas – burning a mix of these fuels, as some plants already do. But relying on natural gas brings its own problems, including methane leaks from wells and pipelines. Methane is a potent greenhouse gas and a major driver of short-term climate warming.
Market conditions are shifting electricity production away from coal and toward cleaner, more cost-effective sources like wind and solar. Indeed, the Clean Power Plan’s original goal of reducing the electric power sector’s carbon emissions by 32% below 2005 levels by 2030 has already been exceeded. But this transition is not moving as quickly as climate science suggests is necessary to avoid catastrophic impacts from warming.
Broader impacts
Beyond climate policy, I expect this ruling to affect how the EPA and other regulatory agencies interpret laws that have been on the books for many years. Regulators may shy away from advancing policies that the court could view as marked departures from past interpretations and actions with big economic and political consequences.
For example, the Securities and Exchange Commission recently proposed a new rule to require publicly traded companies to provide more robust disclosure of the financial risks that climate change poses to their balance sheets. The agency is also moving to more vigorously police greenwashing by companies claiming to be committed to a net-zero carbon future.
In my view, it is clear that the U.S. has entered a new era of administrative law, with an activist court asserting its power to curtail what it perceives as the excesses of regulatory agencies – and not always waiting for those agencies to complete their work.
This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. It was written by: Patrick Parenteau, Vermont Law School.
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Supreme Court curbs EPA authority to regulate fossil fuels
The U.S. Supreme Court handed down a highly anticipated opinion on Thursday that curbed the U.S. Environmental Protection Agency (EPA)’s power to regulate fossil fuels.
The decision in West Virginia v. Environmental Protection Agency is expected to prove consequential for both U.S. and global ambitions to reduce carbon emissions.
In a 6-3 vote, siding with Republican-led state and coal companies, a majority of the court’s justices held that the EPA lacks broad authority, absent explicit authority from Congress, to cap fossil fuel emissions from the country’s existing power plants.
"There is little reason to think Congress assigned such decisions to the Agency," Chief Justice Roberts wrote in the majority opinion, later adding: "We also find it 'highly unlikely that Congress would leave' to 'agency discretion' the decision of how much coal-based generation there should be over the coming decades." Roberts was joined by justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
The court’s holding is a victory for the state of West Virginia, the country’s second-largest coal-producing state, which sued the EPA along with 17 other states that joined the litigation — Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming, and Mississippi Governor Tate Reeves.
Georgetown environmental law professor William W. Buzbee told Yahoo Finance Live that the high court’s ruling, despite narrowing the EPA’s authority, didn’t take away the EPA’s general power to regulate climate change and left in place flexibility for polluters and states to figure out how to comply with environmental law.
“Generally, EPA is going to have to look at the best thing that plants are doing on their sites,” he said, explaining that the court rejected the Obama-era rule that required plants to use the most cutting edge technology to reduce carbon emissions.“But with technological progress that remains possible.”
The ruling is in part a preemptive instruction for the EPA because the agency currently lacks rules that specifically regulate power plants.
The administrations of Barack Obama and Donald Trump expanded and contracted the EPA's authority, respectively. Under the Obama-era Clean Power Plan, energy producers were required to shift away from fossil fuels to more sustainable sources such as wind and power. Those rules were relaxed under the Trump-era Affordable Clean Energy Rule, which an appellate court vacated, finding its requirements "arbitrary and capricious."
The new decision is expected to frustrate the Biden administration's goal to slash U.S. greenhouse gas emissions up to 52% by 2030 and decarbonize the country’s electric grid by 2035. Behind China, the U.S. is the world’s second-largest contributor to carbon emissions.
"Some coal interests and coal states had hoped the court would preclude flexible, cost-effective compliance strategies, because those tend to hurt things like coal plants, and the court does not do that," Buzbee said. "It does reduce the likelihood that the federal government will be pushing things in a protective direction."
QUOTES-Reactions to U.S. Supreme Court ruling on carbon emissions
(Updates with more reactions)
June 30 (Reuters) - Here are reactions to the U.S. Supreme Court ruling on Thursday limiting the federal government's authority to issue sweeping regulations to reduce carbon emissions from power plants.
WHITE HOUSE SPOKESPERSON ABDULLAH HASAN
"This is another devastating decision from the Court that aims to take our country backwards. While the Court’s decision risks damaging our ability to keep our air clean and combat climate change, President Biden will not relent in using the authorities that he has under law to protect public health and tackle the climate change crisis."
ENVIRONMENTAL PROTECTION AGENCY
"We are reviewing the Supreme Court’s decision. EPA is committed to using the full scope of its existing authorities to protect public health and significantly reduce environmental pollution, which is in alignment with the growing clean energy economy."
WEST VIRGINIA ATTORNEY GENERAL PATRICK MORRISEY
"Huge victory against federal overreach and the excesses of the administrative state. This is a HUGE win for West Virginia, our energy jobs and those who care about maintaining separation of powers in our nation."
CALIFORNIA GOVERNOR GAVIN NEWSOM
"SCOTUS sided with the fossil fuel industry, kneecapping EPA's basic ability to tackle climate change. CA will lead this fight with our $53.9 BILLION climate commitment. We’ll reduce pollution, protect people from extreme weather & leave the world better off than we found it."
YAMIDE DAGNET, DIRECTOR FOR CLIMATE JUSTICE, OPEN SOCIETY FOUNDATIONS
"This is an incredible bad week for the global climate movement. From a weak G7 stance to an incredibly undemocratic SCOTUS ruling; it seems to me that backsliding is now the dominant trend in the climate space. To renew confidence in its leadership, the U.S. will need to swiftly pivot and keep its targets on track, while seeking to raise ambition."
MICHAEL BLOOMBERG, U.N. SPECIAL ENVOY FOR CLIMATE AMBITION
"This decision marks the second time in a week that the Supreme Court has turned back the clock to darker days that have dangerous implications for public health. The decision to side with polluters over the public will cost American lives and cause an enormous amount of preventable suffering, with the biggest burden falling on low-income communities and communities of color."
U.S. SENATOR SHELLEY MOORE-CAPITO, WEST VIRGINIA REPUBLICAN
"Today's decision by the Supreme Court is welcome news and further proves that EPA (Environmental Protection Agency) overstepped its authority by imposing enormously burdensome regulations on states to reconfigure our electric grid despite Congress's rejection."
JODY FREEMAN, HARVARD UNIVERSITY LAW PROFESSOR
"This is a lifeline to extending the use of coal."
U.S. SENATOR KEVIN CRAMER, NORTH DAKOTA REPUBLICAN
"Today’s ruling reaffirms Congress never intended the federal government to regulate greenhouse gas emissions for the states."
LEAGUE OF CONSERVATION VOTERS
"This is an outrageous decision that will jeopardize our communities and planet in favor of polluters and their far-right allies."
SENATE MAJORITY LEADER CHUCK SCHUMER, A DEMOCRAT
"Just like last week’s dangerously misguided and abhorrent decisions on gun safety and abortion, the extremist MAGA Court’s ruling today in West Virginia v. EPA will cause more needless deaths – in this instance because of more pollution that will exacerbate the climate crisis and make our air and water less clean and safe."
SENATE MINORITY LEADER MITCH MCCONNELL, KENTUCKY REPUBLICAN
"This ruling will have a significant impact on the Commonwealth. Even as energy prices spiral out of control and experts warn of electricity blackouts, the Biden Administration has continued the Left's war on affordable domestic energy and proposed to saddle the electric power sector with expensive regulatory requirements.
NEW YORK GOVERNOR KATHY HOCHUL
"Make no mistake: today's decision by the Supreme Court is a major setback in our fight against climate change."
SENATE FINANCE COMMITTEE CHAIRMAN RON WYDEN, OREGON DEMOCRAT
"The Republicans on the Supreme Court are not going to allow any meaningful administration efforts to combat climate change. It’s crystal clear. The only way to tackle this problem is through congressional action, which is why it’s so important that Congress pass our clean energy tax credit package.”
TEXAS ATTORNEY GENERAL KEN PAXTON
"With Biden in the White House, the radical left has re-captured the levers of environmental power and are forcing their green agenda on the nation. Today, we stopped him."
(Reporting by Washington bureau; Editing by Howard Goller)
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