The Supreme Court just seriously limited the government’s ability to fight climate change
To avoid the worst impacts of climate change, the world has less than a decade to cut emissions roughly in half. But Congress hasn’t managed to pass climate legislation yet. And at a time when the head of the United Nations has warned that the world is “sleepwalking to climate catastrophe,” the Supreme Court just limited the Environmental Protection Agency’s ability to regulate emissions from power plants.
The case, West Virginia vs. EPA, brought by Republican attorneys general from 19 states (joined by coal companies), came after years of conservative strategizing. It’s an attack on climate action. But it’s also a more general attack on the federal government’s ability to enact regulation. “It could have reverberations far beyond just the Clean Air Act,” Andres Restrepo, an attorney for the Sierra Club, part of a coalition of groups on the opposing side of the case, said in advance of the ruling.
The case concerns the Clean Power Plan, proposed by the Obama administration in 2014, which would have required states to come up with plans to cut emissions from power plants by 32% by 2030, compared to 2005 levels. In 2016, the Supreme Court paused implementation of the rule; in 2017, the Trump Administration repealed it, later proposing its own rule that would have cut emissions by only 1.5% by 2030. But by 2019—because of market forces, not regulation—so many coal power plants had closed that the power sector had already met the 2030 goal on its own.
The lawsuit argued—and the court agreed, in a 6-3 opinion authored by Chief Justice Roberts—that the EPA could only regulate emissions from individual power plants at each location, rather than pushing the industry to adopt solutions like renewable energy. It used the “major questions doctrine,” a court-created legal theory that suggests that regulations that have “major” economic and political impact need to be clearly spelled out by Congress before an agency can take action. (For example, in the past, the court said that the FDA couldn’t regulate tobacco without a clear mandate from Congress.)
Traditionally, Congress has delegated the responsibility for figuring out the details of regulations to experts in agencies. “The obvious problem is that Congress cannot possibly foresee everything that’s coming down the pike,” says Pat Parenteau, an environmental law professor at Vermont Law School. And in the case of the Clean Power Plan, specifically, it’s also hard to argue that it would have had a “major” impact if the changes it required ended up happening in the industry even without it in place.
The fact that the court even took the case is unusual; because the Clean Power Plan never actually took effect, the petitioners aren’t arguing that they’ve been actually affected by it. No utility companies—the companies that would have been forced to make changes if the regulations had ever happened—joined the petitioners. (In fact, some utility companies joined the environmental groups to argue in favor of the plan.) The states and coal power companies argue that the EPA’s regulations would “dictate huge shifts in most sectors of the economy” and “have tremendous costs and consequences for all Americans” and that these changes must come explicitly from language in laws passed by Congress, not regulations created by a government agency.
Though the industry made progress without the Clean Power Plan, the original plan still wouldn’t have gone far enough to be on track for global climate goals. And without new regulation today, it will be hard to reach those goals. Renewable energy is now cheaper than coal, but entrenched interests are keeping fossil fuels in place anyway. Progress toward Biden Administration’s goals of cutting emissions in half by 2030, in line with climate science, is “not on pace,” says Julie McNamara, deputy policy director for climate and energy at the nonprofit Union of Concerned Scientists. “We need all the tools that we have. And that very much includes the Environmental Protection Agency, which has long been understood to have the authority to regulate greenhouse gas emissions from power plants.”
That doesn’t mean that government climate action is definitely doomed. Congress could still pass a climate bill with tax incentives for low-carbon energy sources. The administration could promote aggressive standards for vehicles and methane emissions from oil and gas, and it could invest more in electric vehicles and other solutions. Taking away the full ability to regulate power plants is “going to make it harder for them to [reach the goal to cut emissions in half],” Restrepo says. “But I don’t think that it’s impossible.”
“What I can tell you is, irrespective of what the Supreme Court decides, we are going to continue to do everything we can, under the powers and authorities that we have to protect public health and the environment,” Michael Regan, the head of the EPA, said in an interview with Fast Company the day before the ruling was announced. “It may look differently, we may have to go about it differently because of the ruling, but we will still stay in the fight. And I think that that’s the attitude of this entire administration.”
Additional reporting by Talib Visram.
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