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The Supreme Court Just Made the EPA’s Job a Lot Harder

Why the court limited the agency’s ability to reduce greenhouse gas emissions, and how it makes us vulnerable to climate change.

Words: Regina Johnson
Pictures: Bakhrom Tursunov
Date:

The Supreme Court has ruled that Congress did not authorize the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from power plants, and the 6–3 decision has limited the EPA’s ability to broadly restrict such emissions.

In the case of West Virginia v. Environmental Protection Agency, the Supreme Court reviewed whether the Clean Air Act allowed the EPA to adopt broad regulations across the power sector. It was argued before the Supreme Court on Feb. 28, 2022, and was consolidated with three other cases: Westmoreland Mining Holdings LLC. v EPA, North American Coal Corp. v. EPA, and North Dakota v. EPA (Docket 20-1780).

“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.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Chief Justice John Roberts wrote in the opinion of the court.

In her dissension, Justice Elena Kagan argued the court is hampering EPA’s ability at the worst time.

“Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants,” Justice Kagan wrote in her dissenting view. “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 gasses fit that description.”

“The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy,” Justice Kagan added. “I cannot think of many things more frightening.”

STAKEHOLDER REACTIONS

West Virginia Attorney General Patrick Morrisey is pleased that the case returned the power to decide environmental issues to Congress.

“This is about maintaining the separation of powers, not climate change. Today, the Court made the correct decision to rein in the EPA, an unelected bureaucracy. And we’re not done,” Morrisey said. “My office will continue to fight for the rights of West Virginians when those in Washington try to go too far in asserting broad powers without the people’s support.”

Texas Attorney General Ken Paxton was equally satisfied with the court’s decision.

“In pushing back against the EPA’s power grab, we protected not only the Rule of Law and the constitutional balance between the federal government and the states and between the branches of government, but we protected Americans’ pocketbooks as well. This is a great day for American energy production,” Paxton said in a statement.

But the ruling undermines the EPA’s authority to protect people from smokestack climate pollution when it is most needed, according to Vickie Patton, General Counsel for the Environmental Defense Fund, which was party to the case.

“This is judicial overreach. Today’s ruling was made even though there are no national pollution standards in effect right now for existing power plants. Yet the Court still reached out to rule on an abstract question — and weakened EPA’s authority,” Patton said in a statement.

In response to the ruling, EPA Administrator Michael Regan said the agency will not waver from its responsibility to protect people’s health.

With the Supreme Court’s decision last week, the ball is now in Congress’ court, where policymakers have to decide on the EPA’s regulatory authority and power.

“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,” Regan said in a statement. “We will move forward to provide certainty and transparency for the energy sector, which will support the industry’s ongoing efforts to grow our clean energy economy.”

BACK TO CONGRESS?

Justice Roberts was very clear in his opinion that Section 111 (d) of the Clean Air Act meant EPA could use the “best technology system” to improve power plant operations and cut greenhouse gas emissions. Roberts said Congress “intended a technology-based approach” to regulation in that section of the law, where a technology-based standard focuses on improving the emissions performance of individual sources.

Roberts explained:

“[T]o attain the necessary ‘critical CO2 reductions,’ EPA adopted what it called a ‘broader, forward-thinking approach to the design’ of Section 111 regulations. …. Rather than focus on improving the performance of individual sources, it would ‘improve the overall power system by lowering the carbon intensity of power generation.’ …. And it would do that by forcing a shift throughout the power grid from one type of energy source to another. In the words of the then-EPA Administrator, the rule was ‘not about pollution control’ so much as it was ‘an investment opportunity’ for States, especially ‘investments in renewables and clean energy.’”

In other words, Congress needs to determine — and clarify — the EPA’s regulatory parameters.

WHAT STAKEHOLDERS WANTED

For petitioners, like Republican state attorneys general, coal companies and trade organizations said at issue was whether Congress “constitutionally authorizes the EPA to issue significant rules including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements.”

In support of the EPA stands 192 congressional leaders who wrote in an amicus brief that Congress gave the agency broad authority to regulate greenhouse gasses under the Clean Air Act.

The Edison Electric Institute, a trade association for all US investor-owned electric companies, opposes limiting EPA’s authority. In its amicus brief, EEI said its members were already instituting different initiatives to cut carbon dioxide emissions. In addition, the Institute said the changing electricity generation trends were proving fruitful as lower carbon-producing electrical generation was growing.

The Cato Institute, a Washington, DC-based think tank, argued the court needs to adopt a narrow view for regulating emissions. With each new administration would come an entirely new way to reduce emissions from the power sector, according to Cato. “The entire electricity industry is caught in a dizzying back-and-forth; more broadly, the federal government is becoming an increasingly unreliable partner to the private sector and state governments,” wrote Cato.

“The court must establish a robust major questions doctrine to protect reliance interests from the legal instability caused by presidential administrations,” Cato argued in the brief.

THE REGULATION BATTLES

In 2015, EPA and the Obama administration issued the Clean Power Plan, designed to reduce power plants’ greenhouse gas emissions. The Obama administration said the regulation would help reduce carbon dioxide emissions from the power sector by 32% below 2005 levels by 2030. Under the plan, states had to achieve specific emissions reductions and were given four ways to achieve those reductions. States could update coal-fired power plants, increase the use of natural gas, develop renewable and nuclear energy, or introduce demand-side efficiencies.

The EPA developed state-specific plans for 47 states to cut CO2 emissions from existing power plants. But twenty-four states which included Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming asked the Supreme Court to delay EPA’s Clean Power Plan. The states argued that EPA did not have the authority to regulate a state’s CO2 emissions under the Clean Air Act. The states also argued that the rule would radically transform the way electricity was generated not only in their states but throughout the US and hurt the economy.

West Virginia and Texas opposed the Clean Power Plan, citing the plan was designed to “aggressively transform the domestic energy industry” and would cause states “ongoing, massive, and irreparable consequences on a scale they have never experienced from any federal environmental regulation.” Under the Clean Power Plan, Texas was required to cut its carbon dioxide emissions to 33% by 2030, and West Virginia was required to cut by 29% by 2030. However, being large fossil fuel-producing states, each felt the plan would severely impact their power industries.

According to the EPA, it received over four million comments about the Clean Power Plan. It wasn’t long before the EPA and the Obama Administration were hit with lawsuits.

State of West Virginia, State of Texas v. the Environmental Protection Agency and Regina A. Mccarthy was argued before the US Court of Appeals for the District of Columbia Circuit in 2016. But before the Appeals Court could set up a schedule, the Supreme Court issued a stay that blocked the implementation of the Clean Power Plan until the Circuit Court issued a decision.

The Circuit Court was expected to issue a decision in 2017, but newly elected President Donald Trump signed Executive Order No. 13873 directing the EPA to rescind the Clean Power Plan. The Circuit court granted a request by the Trump administration to halt the lawsuit against the plan.

In 2018, then EPA Administrator Scott Pruitt issued a proposed Affordable Clean Energy rule (ACE) that would have established emission guidelines for states to develop plans to address greenhouse gas emissions from existing coal-fired power plants. Trump’s EPA estimated that the ACE rule would reduce carbon dioxide emissions in 2025 by between 13 and 30 million short tons and that companies could avoid compliance costs of $6.4 billion. But ACE was opposed, and lawsuits were filed against EPA in 2020 by the American Lung Association, the American Public Health Association, and several state Attorney Generals. They successfully argued against the Trump administration’s repeal and replacing the Clean Power Plan with ACE.

On Jan. 19, 2021, the DC Circuit Court issued a decision in American Lung Association v. Environmental Protection Agency. The DC Circuit Court ruled that ACE and the repeal of the Clean Power Plan were invalid because EPA relied on an overly narrow construction of the relevant Clean Air Act provision section 111(d). Furthermore, the court rejected the argument that no matter the circumstances, section 111 of the Clean Air Act unambiguously limits the “best system of emission reduction” to emissions-reducing measures operating at the physical source.

The ACE rule was vacated and sent back to EPA in January 2021.

With a new administration in office, one would have expected a new set of rules to cut emissions from the power sector. However, before the Biden administration could start the process, the Supreme Court accepted petitions for certiorari from the states of West Virginia and North Dakota, Colorado-based Westmoreland Mining Holdings, and Texas-based North American Coal Corporation.

With the Supreme Court’s decision last week, the ball is now in Congress’ court, where policymakers have to decide on the EPA’s regulatory authority and power. Without Congress making the necessary changes, regulation is up to the states, and experience indicates that the states who are the largest emitters of greenhouse gases and carbon dioxide are likely to keep industry-friendly regulations in place. Does Congress have the political will to regulate? Maybe the answer will be clear after the midterm elections.

Regina Johnson is a freelance writer and journalist.

This piece is published in collaboration with Outrider Foundation, a nonprofit media group that publishes commentary on security issues, public policy, and social justice.

Regina Johnson

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