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The Supreme Court just made it harder for the EPA to protect the environment

Image Credit: Flickr/Ivan Radic

The Supreme Court ruled on Thursday to severely restrict the ability of the the Environmental Protection Agency (EPA) to take any new initiative to reduce greenhouse gas emissions or pollution unless specifically authorized by Congress.

The decision sets up a precedent that could be used to block enforcement of regulations at any number of federal agencies if states or corporations decide to challenge that agency's initiatives.

And by putting up roadblocks to federal agency's action to reduce greenhouse gas emissions, the court has made it harder to keep human civilization from experiencing catastrophic global warming -- meaning worsening deadly derechos, droughts, fires, floods, heatwaves, hurricanes, nor'easters, and tornados across the country and around the world.

Power plants are the country’s second-largest source of C02 emissions, accounting for 25% of the U.S. total. And the U.S. is the nation with the second highest amount of greenhouse gas emissions.

So the ruling makes any significant plans to fight climate change at the U.S. federal level that much harder, and extensively interferes with President Biden’s pledges to slash pollution.

“At this point, I don’t see any way to hit the kind of targets they laid out,” David G. Victor, an expert in climate policy at the University of California, San Diego, told The New York Times.

This case is only the latest in what The New York Times calls the “Republican drive to tilt courts against climate action.”

The result of a coordinated, multi-year strategy, this ruling signals how the court is likely to rule on other environmentally damaging cases on their docket.

The Clean Air Act, which some legal experts have called the world's most powerful environmental law, was enacted in 1970, at the birth of the environmental movement. Since then, it has been the underpinning of landmark regulations on air pollution, including soot, smog, mercury, and the toxic chemicals that cause acid rain. Thursday’s decision is a part of a much larger debate on how far the Clean Air Act can go to reduce carbon dioxide emissions.

The ruling was 6-3, with the court’s three liberal justices dissented, while Chief Justice John Roberts wrote the opinion for the conservative majority.

Roberts said that “our precedent counsels skepticism toward EPA's claim” that the law “empowers it to devise carbon emissions caps based on a generation shifting approach,” reasoning that Congress had not explicitly given the EPA the authority to reduce carbon dioxide emissions through caps on emissions, as it designed the Clean Power Plan 一blocked by the Court in 2016 一to do.

“Under our precedents, this is a major questions case,” Roberts wrote, citing the “major questions doctrine,” a judicially created principle that requires Congress to authorize in plain and direct language any sweeping actions by administrative agencies that could transform the economy. This doctrine was also used to repeal the Clean Power Plan proposed by President Obama.

“There is little reason to think Congress assigned such decisions to the Agency,” Roberts added. He also wrote that capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal may be a “sensible” solution, however “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme” under the law in question.

Essentially, it's the equivalent of a state court ruling that firefighters can't take new initiatives or use new technologies to fight fires until a city council approves them.

Justice Elena Kagan wrote the dissenting opinion: The court’s decision “strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.”

The court’s decision follows a sequence of historic policy reversals, including overturning Roe V. Wade, effectively purloining abortion rights, and expanding gun rights after a series of mass shootings.

“This is a Court that’s now taking on a series of precedents like we’ve never seen a Court do, really, in our lifetime,” Lisa Graves told Gizmodo. Graves served in the U.S. Department of Justice and now runs True North Research, a public policy watchdog group. “For this Court to try to take away the EPA’s power, it’s not inside baseball—it’s a dramatic departure from federal policy, from legal precedent.”

At the heart of Thursday’s ruling, is the expanding role of the Environmental Protection Agency. Although the EPA is one of the federal government’s smallest agencies, it has become one of the most controversial, given that its regulations touch nearly every sector of the economy.

Over the last two decades, under the direction of two Democratic presidents, the EPA’s role has been augmented to address the threat of global warming.

In the glaring absence of any new law that attempts to rein in greenhouse gasses, both President Biden and President Barack Obama have utilized the present authority of the Clean Air Act as a stand-in to direct the EPA.

Defenders of the EPA say that under existing laws, the Agency has the authority to draft expansive laws regulating, or even shutting down, coal- and gas-fired plants and gasoline-powered cars that cause global warming, and replace them with wind and solar power and electric vehicles. However the plaintiffs on the case are of the opinion that this power goes too far.

As the Biden administration’s EPA works on its own rule to replace the Obama-era Clean Power Plan, the plaintiffs, which include several attorneys general from Republican states and two coal companies, have essentially brought a preemptive case against it.

Proposed in 2015, the Clean Power Plan aspired to reduce emissions from the power sector by setting reduction targets that states would have needed to meet.

The plan never went into effect, immersed in conservative court challenges for years, one of which was led by West Virginia Attorney General Patrick Morrisey, who is leading this current challenge.

Ultimately, however, the Clean Power Plan was repealed by the Trump administration in 2018. In 2021, as the Trump administration was coming to a close, a federal judge repealed the rejection of the Clean Power Plan as well as Trump’s weak replacement for the policy, the Affordable Clean Energy plan.

While the Biden administration has not introduced its replacement for the policy yet, there’s currently no EPA regulation of the power sector actively on the books.

What sets this case apart from others is that Supreme Court cases are usually based on active policy or regulations at play. Rather, this one is based on the idea of what the agency is able to do under the Clean Air Act.

The Court taking up a theoretical policy such as this “signals that it is more willing to take an active hand in dismantling federal agencies’ ability to regulate than the role the judicial branch would normally play,” Molly Taft of Gizmodo writes.

In a functioning democracy, Congress would be able to pass laws that would then direct the EPA to regulate emissions and pollution through specific mechanisms, however, given the ruling, the decision may set the precedent of placing the responsibility for regulating emissions from the power sector into the hands of the legislative branch.

In a Supreme Court brief, Elizabeth B. Prelogar, the U.S. solicitor general, argued that the court should decline to answer the theoretical question of how far the EPA may go to address climate change in the absence of actual regulation.

“Petitioners’ real concern is not with any extant EPA regulation, but with measures that the agency might adopt in its upcoming rulemaking to limit greenhouse gas emissions from existing power plants,” she wrote.

“The Court is not naïve,” Graves told Gizmodo. “The majority knows that Republicans have blocked in Congress every major significant effort to mitigate climate change in the past few decades. They know that some of the same forces that are behind the amicus briefs [in this case] have been able to thwart Congress’s ability to craft new laws to address this.”

Patrick Morrisey, the Republican attorney general of West Virginia and the lead plaintiff in the case, called the decision a “great win for West Virginia and her residents,” adding, “We are pleased this case returned the power to decide one of the major environmental issues of the day to the right place to decide it: the U.S. Congress, comprised of those elected by the people to serve the people.”

Despite the ruling, the EPA still plans to issue tougher regulations to control methane, a potent greenhouse gas that leaks from oil and gas wells, reports The New York Times.

It also plans to place severe limits on pollution generated by power plants, such as mercury, smog, and soot. By cracking down on these pollutants, the EPA hopes it forces electric utilities to clean up or shut down the dirtiest facilities, such as coal-burning power plants, which produce more carbon dioxide than gas-fired plants.

“EPA is legally obligated to promulgate a rule governing greenhouse gas emissions from existing power plants, but it is entirely speculative what specific measures that future rule will contain,” Prelogar wrote.

The irony of the Supreme Court's decision is that most businesses and industries want to see more guidance from the Environmental Protection Agency.

“This decision flies in the face of corporate demand to address greenhouse gas emissions and will leave the U.S. economy behind Europe, China, and other nations driving low carbon technology development," said Andrew Behar, the chief executive of the corporate accountability organization, As You Sow.

Outside of the interests of the coal companies and states with a vested interest in the continuing viability of fossil fuel production, some of the biggest companies in the U.S., including Apple, Amazon, Alphabet, Microsoft, Netflix and Tesla (TSLA) — filed legal briefs in support of allowing the EPA broad authority to regulate greenhouse gas emissions as a way to prevent the worst impacts of climate change.

"Investors with trillions of assets under management are moving to decarbonize their portfolios to achieve net-zero emissions and thousands of the world’s largest companies, many in the S&P500, are setting targets for their operations and value chains to drawdown their emissions to net-zero. But an even playing field and clear regulatory guidelines from EPA are necessary to drive progress across the economy,” Behar said in a statement.

Markets will continue to move toward a zero emission future because the world is demanding it. And the ruling from the Supreme Court will make the U.S. less equipped to respond to economic pressures from abroad -- exposing companies to competitive risks that could have broad implications for the U.S. economy.

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