Supreme Court limits EPA’s power to combat climate change

The Washington Post

15:02 JST, July 2, 2022

The Supreme Court on Thursday sharply cut back the Environmental Protection Agency’s ability to reduce the carbon output of existing power plants, a blow to the Biden administration’s plans for combating climate change.

The ruling infuriated President Biden and environmentalists, who said it raised formidable obstacles to the United States meeting its climate aims, including the president’s goal of running the U.S. power grid on clean energy by 2035. “Another devastating decision that aims to take our country backwards,” Biden said.

But the Republican-led states that challenged the broad authority the EPA claimed said it was a dutiful examination of the Clean Air Act and a proper acknowledgment that Congress had not given such vast powers to the agency.

The vote was 6 to 3, with Chief Justice John Roberts writing for the court’s majority. And it reinforced an emerging view from its conservatives that too much power is vested in executive branch agencies that act without clear authority from Congress.

“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,'” Roberts wrote, referring to a court precedent. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

In similar fashion, the court has reined in the Centers for Disease Control for enacting an eviction moratorium during the pandemic, and the Occupational Safety and Health Administration from far-reaching vaccine-or-test requirements. Roberts was joined in the EPA decision by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Gorsuch wrote separately to elaborate: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Justice Elena Kagan, writing for herself and fellow liberal justices Stephen Breyer and Sonia Sotomayor, countered that the majority had empowered the wrong people to pass judgment on an existential dilemma.

“The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy,” Kagan wrote. “I cannot think of many things more frightening.”

Kagan began her dissent with familiar warnings about the calamity ahead. With higher seas, fiercer wildfires and other consequences of climate change apparent, the world is already in unprecedented territory.

Global average temperatures have increased more than 1 degree Celsius (1.8 degrees Fahrenheit) since the preindustrial era, largely because of pollution from burning fossil fuels.

If warming exceeds 1.5 degrees Celsius (2.7 degrees Fahrenheit), scientists warn, sea levels could surge, ecosystems collapse, and millions of additional people would be at risk from heat, hunger, disaster and disease.

Biden hoped to lead by example to convince other countries to cut emissions and help the world keep warming under the 1.5 degrees threshold. Now such diplomacy has become more difficult for Biden, especially as countries scramble for new sources of oil and gas after Russia’s invasion of Ukraine.

The president said he will “continue using lawful executive authority, including the EPA’s legally-upheld authorities,” work with cities and states to pass laws, and “keep pushing for additional Congressional action, so that Americans can fully seize the economic opportunities, cost-saving benefits, and security of a clean energy future.”

The decision rested on what is called the “major questions” doctrine, which says Congress must “speak clearly” when authorizing agency action on significant issues.

In his ruling, Roberts chastised the EPA for finding “newfound power in the vague language” of the Clean Air Act, arguing a law written a half century ago never allowed the EPA to force electric utilities to switch from coal to solar, wind and other renewable forms of generation.

“It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,” Roberts wrote. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In her dissent, Kagan said it made sense for Congress in the Clean Air Act to leave to government experts the best way to solve problems that might have been unforeseeable when the law was written.

“The enacting Congress told EPA to pick the ‘best system of emission reduction’ (taking into account various factors),” Kagan wrote. “In selecting those words, Congress understood – it had to – that the ‘best system’ would change over time. Congress wanted and instructed EPA to keep up. To ensure the statute’s continued effectiveness, the ‘best system’ should evolve as circumstances evolved – in a way Congress knew it couldn’t then know.”

She pointed out that the Biden administration has not issued its own regulations.

“That new rule will be subject anyway to immediate, pre-enforcement judicial review,” Kagan wrote. “But this Court could not wait – even to see what the new rule says – to constrain EPA’s efforts to address climate change.”

Environmentalists and those who challenged EPA’s authority divided over what comes next.

Richard Lazarus, a Harvard environmental law professor, said that the Supreme Court was insisting on a clear statement from what it knows is an “effectively dysfunctional” body.

“The Court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change,” Lazarus wrote in an email.

Others noted the decision still allows for the EPA to regulate power plants’ greenhouse gas emission. It just cannot mandate utilities shift to renewables after Thursday’s ruling.

“There is something of a silver lining here,” said Jody Freeman, also a Harvard Law School professor. “It leaves a pathway for EPA to still set meaningful standards.”

EPA officials, too, say they have other tools to reduce power plants’ pollution. “While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities,” EPA Administrator Michael Regan said in a statement.

Others predicted Thursday’s ruling may invite future court challenges to other federal regulations.

“The consequences potentially reach far beyond EPA and the Clean Air Act,” said Lisa Heinzerling, an environmental law professor at Georgetown University. “This is a big statement on how it intends to act moving forward.”

West Virginia Attorney General Patrick Morrisey, R, who led the lawsuit against the EPA, suggested he may bring more cases based on the “major questions” doctrine. “It could be a very positive tool in the ongoing fight against federal overreach,” he told reporters Thursday.

The ruling comes as Biden struggles to pass a major climate bill through an evenly split Senate, compounding Democrats’ efforts to address rising temperatures.

Senate Majority Leader Charles Schumer, D-N.Y., accused the court of “pushing the country back to a time when robber barons and corporate elites have complete power and average citizens have no say.”

Senate Minority Leader Mitch McConnell, R-Ky., praised the ruling.

“The Court has undone illegal regulations issued by the EPA without any clear congressional authorization and confirmed that only the people’s representatives in Congress – not unelected, unaccountable bureaucrats – may write our nation’s laws,” McConnell said in a statement.

The United States is the world’s second-biggest annual emitter of greenhouse gases, and is responsible for a greater portion of historical emissions than any other nation.

West Virginia v. EPA is the latest battle pitting the coal industry and Republican-led states against a Democratic administration that proposes sweeping changes to the way the nation’s power sector produces electricity.

The Supreme Court in 2016 stopped the Obama administration’s plan to drastically reduce power plants’ carbon output. The plan never went into effect, but its emission-reduction goals were met ahead of schedule because of economic conditions that made coal-fired plants more expensive.

A more lenient plan was promulgated by the Trump administration, which said its reading of the law limited the EPA’s actions to regulating emissions at a specific site instead of across the system, a restriction that has come to be known as “inside the fence.”

But on the last day of the Trump administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit said that was an intentional “misreading” of the law.

“The EPA has ample discretion in carrying out its mandate,” the decision concluded. “But it may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”

As a result, the Trump rules were struck, the Obama rules were not reinstated, and the Biden administration has yet to formulate its plan.

For that reason, the administration and environmentalists were stunned when the Supreme Court took the case. The Biden administration advised it to simply vacate the D.C. appeals court decision and wait to make a more intensive review of the EPA’s powers after new regulations were proposed.

The case deeply divided the business community. Mining companies and other firms in the coal sector urged the court to rein in the EPA, arguing coal is necessary for keeping electricity prices low and the grid reliable. Apple, Tesla and other major tech and retail firms investing in renewable energy, meanwhile, told the court that “stable, nationwide rules” are needed to avert climate disaster.

The consolidated cases are known as West Virginia v. EPA.