Congress has failed to pass any climate change legislation for over two decades.
The Obama White House was left to rely on the 1970 Clean Air Act to create regulations to reduce greenhouse gas emissions from power stations, which are currently the second-most carbon-polluting sector in the nation.
The U.S. Supreme Court’s opinion in West Virginia, v. Environmental Protection Agency has curtailed the actions that the Biden White House may take under this law.
“EPA claimed that it had discovered an unheralded power which would allow it to transform its regulatory authority using the vague language of a long-extant but seldom used statute,” Chief Justice John Roberts wrote in the majority opinion. The majority opinion was signed by all six conservative justices. He wrote that “That discovery enabled it to adopt the regulatory program that Congress had conspicuously declined”
Practically, this decision prohibits the agency’s setting of carbon-emission limits to force power generation companies to switch from coal-burning to cleaner energy sources. This is what the Obama Administration tried to do with the Clean Power Plan.
Although it was expected, Carol Browner, the Director of the White House Office of Energy and Climate Change Policy under the Obama Administration, said that “this was not a major blow”. She said that being able to see across the entire grid to encourage cleaner electricity from the best and cheapest sources was a powerful tool in combating climate change.
This is a victory for both coal-fired power stations and fossil fuel producing countries that brought the suit.
In a statement, West Virginia Governor Jim Justice said that he applauded the Supreme Court’s decision in West Virginia v. EPA. He said, “This ruling in support of West Virginia will stop Washington, D.C.’s unelected bureaucrats from being able unilaterally decarbonize the economy just because it pleases them.”
Even though the path to achieving this goal has been narrowed, the Biden Administration is determined to change the way the U.S. produces electricity.
According to Vickie Patton (general counsel for the Environmental Defense Fund), power generation is not just a major emitter. However, making it more climate-friendly will help lower transportation and residential emissions. Electric appliances and vehicles will need low-carbon electricity to fulfill their promises.
It is also important to consider the timing of your actions. The Environmental Defense Fund states that electricity generation must reduce its carbon emissions by at least 50% by 2030 to meet the Biden Administration’s pledge.
Although the courts have limited the EPA’s treatment of carbon dioxide from power stations, legal experts stated that they did not stop short of closing other sources of lower emissions.
“The court did not say, ‘You cannot do this and that’,” said Jody Freeman (founding director of Harvard Law School Environmental Law and Policy Program). For example, co-firing coal with lower-polluting fuels is still possible. A cap-and trade system was not explicitly excluded by the majority opinion, as Freeman called it, “the silver lining” in the opinion.
The decision was already being considered by current regulators. Michael Regan, the administrator of the EPA, stated this earlier in the year. He indicated that other pollutants limits could still be used to steer power generation away form heavily polluting coal. According to E&E News, he stated that “I don’t believe we need to rely upon any one regulation” in order to reduce greenhouse gas emissions.
Advocates of reducing federal power also believe that having clear limits to executive authority can help in crafting policies that are able to withstand legal challenges.
Jeff Holmstead, a former administrator of the EPA under the George W. Bush Administration, stated that “I believe it will be useful to EPA because they will likely establish the parameters within which they can regulate power stations.” This is in contrast to trying to guess what those parameters are, and then fighting them in court later.
In their decisions, the Justices also referred to the “major question” doctrine. This says agencies cannot assume power with so “vast” economic or political consequences unless Congress has specifically mentioned it. This is contrary to long-standing precedent that allows agencies to determine the terms of the statutes authorizing their actions.
Freeman stated, “It’s a very blunt instrument…that could chill an awful lot regulation by not only the EPA, but other agencies as well as climate policy.”
These same arguments have been used in key climate cases, such as arguments against regulation of emissions from vehicles. They also include arguments against the regulation of vehicle tailpipe emissions.
Sackett v. EPA will be decided by the Supreme Court later this fall. This case examines the question of “waters of U.S.” The Army Corps of Engineers (EPA) and EPA use that term to determine what is within their purview under the Clean Water Act. Both courts are working on rules to improve the definition.
Although the case is technically only about a parcel in Idaho that was marshy, the Justices decision could have an enormous impact on the way the government regulates water pollution.
Tom Johnson, an attorney from Wiley Rein, filed an amicus brief for petitioners. He said that the WV v. EPA decision could be used as a “tea leaf” to show how the Supreme Court views the U.S. case.
