The Supreme Court just made it much harder for the US government to respond to climate change in a 6-3 decision in West Virginia v. EPA.
Thursday’s ruling, written by Chief Justice John Roberts and joined by the other five conservative justices, preemptively overturns any settlement the Biden administration may consider issuing under a provision of the Clean Air Act to limit carbon emissions in power plants.
The court ruled that EPA regulations aimed at reducing carbon emissions under a specific provision of the Clean Air Act of 1970 are not permitted because Congress has not specifically authorized the EPA to regulate carbon emissions.
According to the court, the EPA’s power plant emissions rule amounts to a sufficiently large new regulatory proposal targeting a large enough segment of the economy to require specific authorization from Congress.
The court’s decision follows the expanding logic of its so-called “major issues doctrine”. The doctrine states that the Supreme Court can strike down a regulatory measure of “great economic and political significance” if Congress has not specifically delegated a rule-making agency to issue that regulation.
This extensive use of the major issues doctrine threatens to resurrect the court’s rarely invoked “non-delegation doctrine.” The non-delegation doctrine asserts that executive branch agencies cannot update and write new regulations unless Congress specifically delegates that authority to them. The court notably invoked this doctrine to strike down 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 let Congress delegate power to drafting rules to executive branch agencies without the kind of precise delegation that doctrine would require.
While not completely resurrecting non-delegation, the court will no longer simply assume that Congress has delegated powers to agencies. This could have important implications for many executive agency regulations, including those that further regulate carbon emissions.
The Supreme Court’s decision stems from years of litigation over the issue of carbon emissions regulations in three different jurisdictions, all centered on an arcane clause in the Clean Air Act.
The Obama administration used Section 111D of the act to justify rules for the Clean Power Plan, its flagship plan to cut carbon from power plants, prompting utilities to shift generation from high-emitting power plants to power plants. more efficient. But opponents of the regulations have accused the White House of misinterpreting legal language that they say only gave the EPA the right to dictate what power plant owners could do within the “fence limit.” ” of the installation. The Clean Power Plan gave companies “beyond the limit” options to comply with the rule by building renewable energy farms or operating low-emission power plants to offset dirtier coal-fired power plants.
The Obama EPA’s interpretation was “a reach,” said Brendan Collins, a partner at the Philadelphia-based environmental law firm Ballard Spahr. But the policy was really meant to be a stopgap that would give utilities more flexibility until carbon capture technology – equipment that can be installed on a factory’s chimneys to collect and store carbon dioxide before that it does not enter the atmosphere – becomes feasible enough to mandate.
“At the end of the day, if the EPA is not prepared to say that carbon capture is a sufficiently technically and financially feasible technology to impose this obligation, then the best thing to do is to use less coal to produce the same amount of electricity,” said Collins, whose company customers are not involved in the deal.
While the clean energy plan offered several options to achieve this outcome, including giving utilities the right to move production from dirtier factories to cleaner ones, the Trump administration’s energy rule Affordable Clean, or ACE, has narrowed the scope of the regulations, forcing power plant operators to make more efficient coal-fired units. The rule actually encouraged plant owners to burn more coal, as long as the generators used were more efficient.
If the Trump administration had stopped at simply retiring and replacing the Clean Power Plan, there might not be a case here today. But the Trump-era EPA specifically argued that its interpretation of Section 111D as limiting federal authority to the area “inside the fence” was correct.
“The political reason was to lock in the win,” Collins said. “But the Trump administration didn’t do a hedge. They didn’t say, “We can only do that, and even though we could do more and had the discretion to make that choice, we exercise our discretion to only do it because we think it’s the most technically feasible choice. No. They did everything saying, ‘We must not do more than that, and we cannot do more than that.’
The United States Court of Appeals for the District of Columbia Circuit struck down the ACE rule on these grounds, holding that Section 111D does in fact grant the EPA authority beyond the closing of a facility.
At odds with the DC Circuit, the Supreme Court largely left the EPA where it started. The Clean Power Plan has already been canceled and the Biden administration has said it will not relaunch the regulations. The ACE rule has already been rolled back and the Biden administration has said it will not reinstate the regulations. And the EPA has yet to announce what it plans to propose in place of the ACE rule.
Given the legal doubt caused by the Obama administration’s use of Section 111D, few political observers expected Biden’s EPA policymakers to rely on that same law this time around. this.
“There will be no effect on the powerhouses of this case, win, lose or draw,” Collins said ahead of the decision.
But Collins said he expects the Biden administration’s next powerhouse plan to be much more aggressive in the wake 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 emissions reductions directly at facilities. In other words, new solar panels or increased use of a gas plant will not be enough to bail out a coal-fired power plant; the plant should either capture its emissions or shut down.
This, he said, is why the plaintiffs in West Virginia v. EPA were primarily a mining company and Republican states.
“Westmoreland Coal?” They sell coal. red states? They are there to get elected. So you don’t have anybody to deal with the consequences of what that outcome will be,” Collins said. “And the consequences would be a more ironic approach. … It will be an uncomfortable world for generators of electricity.
The EPA is required to regulate carbon emissions under the Clean Air Act due to a doctrine known as the “endangerment finding.” The discoverywhich came into effect in 2010, officially designated global warming gases as pollutants meeting the Clean Air Act’s threshold for harming human health.
Overturning that finding would, experts say, force EPA lawyers to disprove the reality of climate science in court. The extreme improbability of this result may be why the Trump administration resisted calls from allies to target discovery.
The legal recognition of the danger posed by greenhouse gases does not dictate a prescription on how to reduce them. That ambiguity gave the Trump-era EPA the authority to enact power plant regulations that models predicted would not reduce emissions at the rate U.S. government scientists deemed necessary to avoid catastrophic warming.
The systemic changes in energy use needed to keep global temperatures from reaching extreme levels in most traditional climate models would already amount to an unprecedented economic overhaul. 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 conclude that any further regulations issued by the EPA to limit carbon emissions without a specific direction from Congress violate its major issues doctrine. With Congress polarized over whether or not to respond to climate change, let alone how, the court may well have cut off key regulatory avenues.
Meanwhile, US emissions are poised to climb again this year.