Supreme Court cuffs Biden’s climate efforts

Thursday’s ruling by the conservative majority said the EPA could not take the kind of broad approach the Obama administration has taken to regulating greenhouse gases from the nation’s power plants. And it’s incumbent on Congress — which has been unable to pass major climate legislation since the death of the Democrats’ cap-and-trade bill 12 years ago — to give the EPA more power. authority to fight climate change, if lawmakers want the agency to act aggressively.

Democrats’ hopes of passing major climate legislation have been frozen since the demise of Biden’s Build Back Better plan, which contained more than $500 billion for climate-related efforts last year. And the door to congressional action is narrowing as Republicans are expected to regain at least one chamber in this fall’s midterm elections.

Now, after Thursday’s decision, Biden’s options for addressing climate change using existing laws are also diminishing.

The High Court said the Obama administration’s 2015 climate rule – which attempted to push a massive shift of states away from coal to natural gas and renewable sources – was an ‘unprecedented’ and illegal expansion of power from the EPA.

“Capping carbon dioxide emissions at a level that will force a nationwide transition from using coal to generate electricity can be a ‘sense solution to the crisis of the day,'” wrote the Chief Justice John Roberts, joined by the other five Tories. judges.

“But it’s not plausible that Congress gave the EPA the power to enact such a regulatory scheme on its own initiative in Section 111(d)” of the Clean Air Act, he said. concluded. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting under clear delegation from that representative body.”

In her dissent, Judge Elena Kagan said the court had taken a serious step in overriding part of the Clean Air Act of 1970: “Today the Court strips the Environmental Protection Agency of Environment (EPA) of the power Congress has given it to address the ‘most pressing environmental challenge of our time,’ she wrote, citing an earlier climate ruling.

The EPA and the White House did not immediately comment.

The Supreme Court ruled 15 years ago that the EPA had the authority to regulate carbon dioxide and other types of pollution that cause climate change. But the new, more conservative court ruled on Thursday that its power to act aggressively to reduce carbon pollution was relatively limited.

Scientists have warned that nations are running out of time to avoid the devastating effects of global warming and that governments must take more aggressive action if they are to deliver on their promises under the Paris climate agreement. 2015. The United States is the world’s second largest source of greenhouse gas pollution, behind China, and electricity generation is the country’s second largest source of emissions, after transportation.

The extent of the EPA’s authority has been an unanswered legal question since the Obama administration enacted its key power plant rule, the Clean Power Plan, in 2015. That rule was built on a complex scheme aimed at pushing states and utilities to move away from coal as a source of electricity and favor natural gas or renewable energies.

The Obama EPA had taken a broad view of the industry and argued that the rule reflected the ability of utilities to move seamlessly between generation sources – a unique feature compared to other industries like refining. oil or steel mills. He set goals for states to reduce their carbon pollution, but offered flexibility on how to achieve those goals, saying it would favor the most cost-effective solutions.

But West Virginia and other opponents persuaded the Supreme Court in 2016 to block the rule from taking effect. They argued that the Clean Air Act allowed the EPA to reduce emissions only through requirements that could be applied directly on-site at individual power plants, and that Obama’s rule amounted to a power grab for reshape one of the most important industries in the country.

The Trump administration then withdrew the Obama rule and drafted a replacement rule, called the Affordable Clean Energy Rule, which only required states to consider certain efficiency improvements to coal-fired power plants. The plan would have achieved few carbon reductions, and it might even have increased emissions from some factories if they became more profitable and operated more frequently.

But the DC Circuit Court of Appeals overturned that plan on Trump’s last full day in office, finding the EPA’s legal interpretation fatally flawed. The move opened the door for Biden to craft a replacement, though few experts saw it as giving the EPA carte blanche to issue a rule as sweeping as Obama’s.

With Thursday’s ruling, the Supreme Court stepped in to set limits on the Biden administration rather than waiting to see what kind of rule it issues in the future.

In doing so, it relied on the so-called “big questions” doctrine, an academic term that the majority used for the first time in a decision. The doctrine allows judges to strike down regulations or agency actions that address matters of great economic or political importance without explicit authorization from Congress.

The High Court has recently rolled out the doctrine against agency actions intended to protect public health, including last year when it overturned the Centers for Disease Control and Prevention’s Covid-era eviction moratorium, which she deemed deviating from the mission entrusted to the agency by Congress.

But Thursday’s decision extended that power to target topics that lie in an agency’s wheelhouse — like regulating air pollution from power plants, an area in which the EPA has decades of expertise. ‘experience.

The Biden administration argued that the carbon dioxide emissions trading system created by the Obama EPA’s Clean Power Plan was legal, under a section of the Clean Air Act giving the agency wide latitude to regulate air pollution. But the conservative majority did not believe him.

“Congress certainly did not confer similar authority on the EPA elsewhere in the Clean Air Act,” Roberts wrote. “The last place you would expect to find it is in the previously little-used backwater of Section 111(d).”

In his dissent, Kagan argued that Congress writes open-ended provisions into laws like the Clean Air Act precisely to empower agencies to act on emerging issues.

“One of the main reasons Congress grants broad delegations like Section 111 is so an agency can respond, appropriately and proportionately, to new and big problems,” she wrote. “Congress knows what it doesn’t know and can’t know when it drafts a statute; and so Congress empowers an expert agency to deal with even the most important issues as they arise.

Although the Supreme Court prohibited the EPA from using emissions trading in any future rule, the court otherwise declined to explicitly define the EPA’s authority.

This raises the possibility that the EPA is seeking to require action that goes beyond simply improving individual power plants, but does not amount to pushing broad changes toward cleaner energy. However, Roberts noted that this section of the Clean Air Act has only ever been applied to individual pollution sources, potentially an EPA bow warning shot.

During oral arguments in February, several justices wrestled with the practical application of the physical boundary of the “fence line” proposed by Republican attorneys general and several coal companies. This standard would limit the EPA to promulgate rules at the plant level, rather than looking at statewide emissions as the Obama administration had done.

In his dissent, Kagan argued that the majority of the court stripped the EPA of the power given to it by Congress to fight climate change using a method that has been proven in the real world.

“The limits the majority now places on the authority of the EPA run counter to the statute written by Congress,” Kagan wrote, joined by Justices Sonia Sotomayor and Stephen Breyer, just hours before the start in his retirement.

“The parties do not dispute that generation transfer is indeed the ‘best system’ – the most effective and efficient way to reduce carbon dioxide emissions from power plants,” she added.

Kagan also criticized the majority for not waiting to see what new rule the Biden administration proposed before deciding “to limit EPA efforts to address climate change.”

Because anything the EPA proposes for power plants will eventually have to get judicial approval, Administrator Michael Regan has suggested in recent months that the agency is considering “inside the fence” options, beyond beyond the efficiency improvements required by the Trump plan. These could include the installation of renewable energy sources on the grounds of coal-fired power plants.

Whatever rule the Biden administration ultimately issues is almost certain to be challenged again — albeit with these restrictions in place, perhaps on both sides, as environmentalists simmer on legal limits imposed on the EPA.

More broadly, Regan touted a holistic approach to power plant regulation so that utilities can better understand their greenhouse gas requirements, as well as conventional pollutants such as soot and those that cause smog and acid rain, sewage discharge, and disposal of coal ashes and other solid wastes. Considering all of this means utilities can decide whether it makes more economic sense to continue investing in aging factories or to turn to cleaner sources, Regan explained.

“If some of these facilities decide it’s not worth investing in and you get an accelerated retirement, that’s the best tool to reduce greenhouse gas emissions,” Regan told reporters in March. .

The EPA is also considering strengthening separate but related Obama-era standards for newly built natural gas plants.

The agency in April launched a white paper project examine available technologies that could further reduce emissions in newly built gas-fired power plants, which could eventually lead to stricter regulations.

There’s a broad consensus in the energy industry that U.S. power companies won’t build new coal-fired plants, due to the economic woes, but utilities continue to build new gas capacity. . The US Energy Information Administration predicts that 21% of new installed electrical capacity in 2022 will be powered by natural gas, with major plants under construction in Florida and the Rust Belt.


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