The Supreme Court on Thursday sharply curtailed the EPA’s authority to regulate carbon pollution from electric utilities, dealing a blow to the Biden administration’s efforts to rein in climate change as scientists warn greenhouse gases are accumulating at a perilous pace.
The ruling came on the final day of the court’s term, a day before a holiday weekend and weeks after scientists at the National Oceanic and Atmospheric Administration announced the atmospheric concentration of carbon dioxide, a heat-trapping greenhouse gas responsible for warming Earth, hit an all-time high of 421 parts per million.
In a 6-3 vote, with Chief Justice John G. Roberts Jr. writing for the majority, the court ruled that the EPA does not have authority under the Clean Air Act to regulate climate-warming emissions from the power sector by devising a system to cap emissions because Congress did not specifically authorize it to do so.
In a dissenting opinion, Justice Elena Kagan, wrote for the liberal wing that Congress often defers to agencies on their expertise, writing that the opinion “overrides that legislative choice.”
[Democrats fume, GOP lauds ruling to weaken EPA]
EPA Administrator Michael S. Regan said in a news release that the agency would continue to do all it can to address climate change and air pollution.
“While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change,” Regan said. “We will move forward to provide certainty and transparency for the energy sector, which will support the industry’s ongoing efforts to grow our clean energy economy.”
Experts said the ruling will have sweeping implications beyond climate policy by limiting what federal agencies can do to implement federal law.
The case is about a since-abandoned Obama-era proposal to regulate emissions from utilities.
The rule in question never went into effect after the Supreme Court halted its implementation in 2016, when justices voted 5-4 to freeze the regulation before an appeals court could review it.
Then after the Trump administration assumed office, the EPA rescinded the Obama-era proposal, called the Clean Power Plan, and issued a weaker one, which a federal court in Washington, D.C., struck down in January 2021.
The plaintiffs in the case, a group of Republican attorneys general, led by West Virginia, and coal-mining companies, argued that Congress had not authorized the agency through the Clean Air Act to regulate the electric utility industry broadly.
“So this is new power. This is transformative power,” Lindsay See, the West Virginia solicitor general, said at oral arguments in February, referencing the EPA’s Obama-era proposal. “It’s power that goes into an area of traditional state authority, which is energy and utility regulation.”
The court heard the case the same day the Intergovernmental Panel on Climate Change, a United Nations climate science panel, said in a report that humans are heating the planet at a dangerous rate. “With fact upon fact, this report reveals how people and the planet are getting clobbered by climate change,” António Guterres, the United Nations secretary-general, said that day.
Mining, heavy-industry groups and Republicans cheered the ruling. “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,” West Virginia Attorney General Patrick Morrisey said in a statement. “This is about maintaining the separation of powers, not climate change.”
Broad repercussions
The ruling will make it more difficult for the EPA to address climate change domestically, but may also have repercussions in health, workplace, safety and medical policies, experts said.
Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law within Georgetown University, said “the breadth of this opinion goes beyond the EPA’s ability to regulate the environment and touches the authority of all federal agencies that issue regulations to protect our environment, health and safety. The ripple effects of this decision are profound, and could hamstring agencies like the [Centers for Disease Control and Prevention, Occupational Safety and Health Administration], EPA, [Food and Drug Administration] and [the Centers for Medicare and Medicaid Services] from regulating a huge number of issues.”
Roberts wrote “it is not plausible” that Congress gave the EPA “the authority to adopt” a “regulatory scheme” to limit emissions by setting caps on the amount of pollution that industry can release.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Roberts wrote.
Kagan disagreed. Congress is aware of its intellectual limits, she wrote. “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise,” Kagan wrote. “The majority today overrides that legislative choice,” she wrote.” In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.”
With an inward-facing jab at her own institution, Kagan added: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high.”
Though the power sector is no longer the largest source of emissions in the country, emissions spiked from utilities in 2021, according to independent estimates, and the high-court ruling limits the Biden administration’s options in addressing that pollution.
Power generation was the most carbon-polluting sector until 2016, when the transportation sector passed it.
EPA Administrator Michael S. Regan said at a Senate budget hearing in April the agency would issue its new proposal to regulate emissions from the power sector “as soon as the Supreme Court rules” on the case.
President Joe Biden has set a goal of transforming the power sector to be carbon-free by 2035 and zeroing out emissions economy-wide by 2050.
Justice Samuel A. Alito Jr. appeared skeptical of the EPA’s legal authority to rein in emissions from utilities during oral arguments, asking Elizabeth Prelogar, who in her role as solicitor general represented the administration, how the Clean Air Act gives “gives you the authority to set industrial policy and energy policy and balance such things as jobs, economic impact, the potentially catastrophic effects of climate change, as well as costs.”
Alito was also dismissive of climate science, describing it as an occurrence “some people believe is a matter of civilizational survival.”
Prelogar said much of the utility sector supports the administration in the case, noting that they want “flexibility” to operate their plants. The Edison Electric Institute and the National Association of Clean Water Agencies, two trade groups, filed briefs in the case in support of EPA.
The administration and environmental groups argued that the court should rule against the states and companies because there is no rule in place — a line of attack Justice Neil M. Gorsuch appeared to heed.
“The solicitor general makes a strong argument that states are not harmed here because, under the current state of affairs, there is no rule in place,” Gorsuch said.
The Supreme Court — in Lujan v. Defenders of Wildlife, handed down in 1992 — established requirements plaintiffs must meet to bring a case, including showing the defendant has injured them and that the harm must be “actual or imminent,” not theoretical.
Consolidated from four total cases, the case is West Virginia v. Environmental Protection Agency.
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