The Supreme Court has only made it much more difficult for the U.S. government to respond to climate change in a 6-3 ruling in the West Virginia v. Case. EPA.
The Thursday decision, written by Chief Justice John Roberts and along with the other five Conservative judges, destroys any regulations the Biden administration may consider issuing under a Clean Air Act provision to restrict carbon emissions at power plants.
The court ruled that EPA regulations aimed at reducing carbon emissions under a specific provision of the 1970 Clean Air Act were not permissible because Congress did not specifically authorize the EPA to regulate carbon emissions.
According to the court, the EPA’s regulation of power plant exemptions amounts to a large enough new regulatory proposal targeting a large enough segment of the economy to require specific congressional authorization.
The court’s ruling follows the expansive logic of its so – called “big question doctrine”. The doctrine states that the Supreme Court can suspend regulatory action of “great economic and political significance” if Congress has not specifically delegated a rule-issuing agency to issue that regulation.
This extensive use of the main questions doctrine threatens to resurrect the court’s rarely invoked “non-delegation doctrine”. The non-delegation doctrine claims that executive branch agencies cannot update and write new regulations unless Congress specifically delegates that authority to them. The court best known for this doctrine of destroying two New Deal programs in the 1930s. Since then, the court has long relied on other interpretations of the law and its own precedents to allow Congress to delegate rule-writing authority to executive branch agencies without the kind of precise delegation that the doctrine would require.
Although the non-delegation is not fully revived, the court will now no longer simply accept that Congress has delegated authority to the agencies. This could have significant implications for many executive branch agency regulations, including any that further regulate carbon emissions.
The Supreme Court ruling stems from years of litigation over the issue of carbon emissions regulation across three different administrations, all centered on an obscure clause of the Clean Air Act.
The Obama administration used Article 111D of the law to justify rules in the Clean Power Plan, its signature plan to cut carbon from electricity generating stations, which encouraged utilities to shift production from high-emission plants to more efficient plants. Opponents of regulation have accused the White House of misinterpreting legal language, saying only the EPA gives the right to dictate what power station owners can do within the facility’s “fence”. The Clean Power Plan has given companies options “outside the fence” to comply with the rule by building renewable energy farms or operating lower-emission plants to compensate for dirtier coal-fired stations.
The Obama EPA’s interpretation was “an achievement,” said Brendan Collins, a partner at Philadelphia-based environmental law firm Ballard Spahr. But the policy was actually meant to be a stopgap that would give utilities more flexibility until carbon capture technology – hardware that can be mounted on the smoke stacks of a plant to collect and store carbon gas before it enters the atmosphere – became feasible enough to give a mandate.
“At the end of the day, if EPA is not ready to say carbon capture is a technology that is feasible enough from a technical and financial point of view that it can impose that obligation, then the best thing you can do is use less coal to make the same amount of electricity, ”says Collins, whose firm’s clients are not involved.
While the Clean Power Plan has provided several options to achieve that outcome, including by giving utilities the right to shift generation from dirtier to cleaner plants, the Trump administration’s Affordable Clean Energy, or ACE, has the regulation’s rule size reduced, which requires power station operators to use coal-fired units more efficiently. The rule actually gave plant owners an incentive to burn more coal, as long as the generators used were more efficient.
If the Trump administration had stopped simply withdrawing and replacing the Clean Power Plan, there might not have been an issue here today. But the Trump-era EPA specifically argued that its interpretation of Article 111D as restrictive federal authority to the area “within the fence” was correct.
“The political reason was to secure the victory,” Collins said. “But the Trump administration has not hedged. They did not say, ‘We can only do this, and even if we could have done more and had the discretion to make that choice, we exercise discretion to do it just because we think it is the most technically feasible choice. ‘ No. They went for everything by saying, ‘We must not do more than that, and we can do no more than that.’
The U.S. District Court of Appeals for the Columbia District Circuit dismissed the ACE rule on those grounds and ruled that Section 111D in effect grants the EPA authority outside a facility’s fence.
By disagreeing with the DC Circuit, the Supreme Court largely left the EPA where it started. The Clean Power Plan has already been repealed, and the Biden administration has said it will not revive the regulation. The ACE rule has already been stripped, and the Biden administration has said it will not reinstate the regulation. And the EPA has not yet announced what it plans to propose in place of the ACE rule.
Given how much legal doubt the Obama administration’s use of Article 111D has raised, few policymakers expected regulators at Biden’s EPA to rely on the same statute this time around.
“There is going to be no effect on power plants from this case, win, lose or draw,” Collins said before the decision.
But Collins said to expect the Biden administration’s upcoming power plant plan to be much more aggressive because of West Virginia v. EPA. Stripped of its ability to offer a similar menu of compliance options, the agency will likely have to rely more on emission reduction directly at facilities. In other words, new solar panels or more use of a gas plant will not save a coal-fired power station; the plant will either have to capture or close its emissions.
This, he said, is why the plaintiffs in West Virginia v. EPA was primarily a coal mining company and Republican states.
“Westmoreland Coal? They are selling coal. Red states? They are being elected. “So you have no one to deal with the consequences of what this outcome will be,” Collins said. “And the consequences will be a more iron fist approach. … It will be an awkward world for generators. ”
The EPA is required to regulate carbon emissions under the Clean Air Act as a result of a doctrine known as the “threat finding.” The findingwhich went into effect in 2010, has officially designated planetary heating gases as pollutants that reach the Clean Air Act’s threshold to harm human health.
The repeal of that finding would, experts say, require EPA lawyers to refute the reality of climate science in court. The extreme improbability of that outcome may be why the Trump administration resisted calls from allies to target the finding.
Legal recognition of the danger posed by greenhouse gases does not dictate a prescription for how to reduce it. That ambiguity gave the Trump-era EPA the authority to introduce a power-centric regulation that, according to models, would fail to reduce emissions at the rate US government scientists said was necessary to avoid catastrophic warming.
The systemic shifts in energy use needed to prevent global temperatures from rising to extreme levels under most mainstream climate models will already amount to an unprecedented economic review. With each passing year, the degree of change needed becomes more and more drastic.
But based on the court’s logic in the West Virginia case, it may well be that any other regulation issued by the EPA to restrict carbon emissions without specific instruction from Congress violates its main question. With Congress polarized on the question of whether to even respond to climate change, let alone how, the court may have cut off major avenues for regulation.
Meanwhile, US emissions are on the rise again this year.