'Big problems': The Supreme Court handcuffed EPA on climate change. What comes next?

·8 min read

In a 6-3 decision Thursday, the U.S. Supreme Court's conservative bloc limited the ability of the Environmental Protection Agency to address climate change, experts said, but the decision could have wider implications.

The ruling marks a major inflection point in two storylines. Groups pushing for more robust action on climate, which scientists warn is needed to ward off a collection of global catastrophes, said the decision handicaps the federal government's ability to regulate greenhouse gas emissions from the U.S. energy sector, the second-largest contributor of such pollutants after transportation.

“It strips federal EPA scientists of their ability to help the American public tackle the worst effects of climate change, and the EPA of its power to protect the environment and our communities from a worsening climate crisis,” said Marie Owens Powell, president of AFGE Council 238, the EPA's largest employees union.

The Supreme Court limited how a national air pollution law can be used to reduce carbon dioxide emissions. By a 6-3 vote, with conservatives in the majority, the court said that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants.
The Supreme Court limited how a national air pollution law can be used to reduce carbon dioxide emissions. By a 6-3 vote, with conservatives in the majority, the court said that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants.

The ruling could create a “massive chilling effect” for regulators at a wide variety of federal agencies, from the Department of Transportation to the Department of Energy to the Occupational Health and Safety Administration, said Kevin Bell, staff counsel for the nonprofit Public Employees for Environmental Responsibility.

“Any major regulatory program that involves a shift away from current practices ... is now going to face big problems,” Bell predicted.

Here are the details, according to past and present EPA employees and legal experts from across the political spectrum:

What is West Virginia v. EPA about?

On its face, the scope of West Virginia v. EPA appears limited. The majority opinion written by Supreme Court Chief Justice John Roberts puts the final nail in the coffin of the EPA's Clean Power Plan. The Obama-era regulation sought to forcefully transition the nation's energy supply away from coal and natural gas power plants and toward renewable energy sources such as wind and solar. The goal was to substantially reduce emissions of greenhouse gases such as carbon dioxide, cutting down U.S. contributions to global warming.

President Obama speaks about his Clean Power Plan on Aug. 3, 2015.
President Obama speaks about his Clean Power Plan on Aug. 3, 2015.

Finalized in 2015 toward the end of Obama's second term, the rule never got off the ground. Opponents sued before the Trump administration rolled it back in 2017, then replaced it with the Affordable Clean Energy rule. That plan also was taken to court, and both cases ended up before the Supreme Court in West Virginia v. EPA.

The Biden administration said it intended to scrap both plans, regardless of the court's decision, and work toward a new one. In that way, there was little immediate impact from the court's decision Thursday.

And the goals of the Clean Power Plan have already been achieved.

Eric Schaeffer, executive director of the nonprofit Environmental Integrity Project and a former EPA enforcement chief, said the EPA calculated the Clean Power Plan would cut coal power to 27% of the nation's energy supply by 2030. According to the U.S. Energy Information Administration, coal dropped to 21.8% last year.

So what's the big deal?

Despite progress in the energy sector, scientists and environmental groups warn that the climate picture has worsened since 2015. Even with the unexpected drop in coal and rise in renewables, the United States is not on track to meet its climate goals of cutting greenhouse gas emissions in half by 2030.

“Progress is faster than was anticipated, but the problem is also worse than we thought it was,” said David Doniger, a senior strategic director for the Natural Resources Defense Council. “We need to go further and faster.”

Cars are stranded in a Walmart parking lot after a flash flood in Nashville, Tenn., on March 28, 2021. Weather extremes, as well as drought, wildfire, flooding and diminished air quality, will increase in frequency and intensity in North America as global warming accelerates, according to the United Nations Intergovernmental Panel on Climate Change.
Cars are stranded in a Walmart parking lot after a flash flood in Nashville, Tenn., on March 28, 2021. Weather extremes, as well as drought, wildfire, flooding and diminished air quality, will increase in frequency and intensity in North America as global warming accelerates, according to the United Nations Intergovernmental Panel on Climate Change.

Doniger and other environmental advocates said that means the federal government needs to do more to address climate change. The EPA is poised to do so: In 2007, a Supreme Court ruling in Massachusetts v. EPA found that the agency has the authority to regulate greenhouse gases such as carbon dioxide.

The EPA is the primary federal agency with the authority to tackle air pollutants and environmental issues. Advocates hope a new plan under Biden could further speed the nation's energy transition, but Nicole Cantello, an enforcement attorney for the EPA's regional offices in Chicago, said Thursday's ruling is a setback.

“There is no time to waste ... and now we feel like time is passing us by to regulate this,” Cantello said.

How does West Virginia v. EPA restrict climate action?

Thursday's decision does not overturn the 2007 precedent and leaves the EPA's ability to regulate carbon dioxide in place.

“The Supreme Court didn't say you couldn't regulate ... or that there was nothing that can be done,” said Allison Wood, an attorney for the Virginia-based law firm McGuireWoods.

But, legal experts said, it substantially limits the EPA's ability to do so.

For many air pollutants, the EPA requires filters or “scrubbers” to be installed on industrial facilities to remove harmful chemicals from the air. Such regulations, the court's conservative majority ruled, are well-established and can be used, but the EPA overstepped its authority by creating a plan that would force a nationwide energy transition, an effect too “major” to occur without explicit permission from Congress.

“The basic and consequential trade-offs involved in such a choice are ones that Congress would likely have intended for itself,” Roberts wrote. “Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act.”

Environmentalists said the ruling creates a Catch-22 that essentially kills the agency's ability to combat greenhouse gas emissions from power plants. Filtration technologies are not robust enough to adequately stop the emission of carbon dioxide and other gases from coal and natural gas power plants, they said. But if the agency comes up with another method, it risks being struck down by the court again because of the scope of the problem.

“It's going to make it very, very hard to regulate climate change in the future,” said Jonathan Masur, a professor of law at the University of Chicago.

What about other environmental regulations?

As the court's decision on the case approached, environmental groups worried it would go even further, striking down any regulation not explicitly authorized by Congress. That didn't happen, but the court's intervention based on the regulation being too “major” will have a similar effect, some argued.

Traditionally, the EPA and other federal agencies have had freedom to create regulations. In the 1970s, Congress passed the Clean Water Act and Clean Air Act to address rampant nationwide pollution, leaving it to the EPA to establish the rules to clean it up.

Scum smears the shoreline as boaters take off in May 1972 at Lake Tahoe.
Scum smears the shoreline as boaters take off in May 1972 at Lake Tahoe.

The Supreme Court ruled the EPA overstepped its Clean Air Act authority. The same principle could be applied to regulations under the Clean Water Act or the regulations of other federal agencies, Masur said. He pointed out that the court restrained OSHA this year, when it ruled that a mandate requiring workers at large companies to either receive a COVID-19 vaccine or wear a mask overstepped OSHA's authority to create safe workspaces.

Some legal experts argued that without a clear definition of what makes a regulation “major” enough to overstep authority in the eyes of the Supreme Court, regulators of any agency face a chilling effect as they attempt to renew or create regulations.

“Whenever EPA is trying to regulate something either very politically sensitive or economically significant ... then it can only do so if it has clear, explicit statutory authority from Congress,” Masur said.

Others doubt the West Virginia ruling will have that substantial an effect.

Stan Meiburg, a former deputy administrator at the EPA under the Obama administration, said the West Virginia case largely hinged on a subsection of the Clean Air Act agency employees have long known could be problematic. Though he said the Supreme Court's decision unduly handicaps the agency, other programs with better precedent, such as those used to increase the fuel efficiency of cars, are more likely to survive.

“There will be a chilling effect ... but how much of an effect is hard to say,” Meiburg said.

What's next?

Policy experts said there are a range of possibilities stemming from the West Virginia decision.

To tackle climate change, the EPA may go ahead with plans to reduce emissions from the energy sector — a step some environmental groups are urging, despite another potential legal challenge.

“EPA needs to get its proposal to revise carbon limits for power plants out for public review as soon as possible,” said Schaeffer of the Environmental Integrity Project.

The United Nations said April 4 that nearly everybody breathes air that doesn’t meet standards for quality, and it called for action to reduce fossil fuel use, which generates pollutants that cause respiratory and blood-flow problems and lead to millions of preventable deaths each year.
The United Nations said April 4 that nearly everybody breathes air that doesn’t meet standards for quality, and it called for action to reduce fossil fuel use, which generates pollutants that cause respiratory and blood-flow problems and lead to millions of preventable deaths each year.

Or the agency could fight greenhouse gas emissions in other ways. Schaeffer said the agency could implement more time-tested regulations on other harmful emissions from power plants that would curb coal production. Others argued the EPA has explicit approval to require coal and natural gas plants to install the latest generation of carbon-capturing equipment or that the agency could focus on other greenhouse gasses such as methane, which can leak from gas wells and landfills.

Wood, the Virginia-based attorney who has represented the interests of industrial clients in federal cases, said she hopes the decision will result in environmental groups looking away from the EPA and toward working with corporations to improve environmental practices.

“There are ways of getting at it through companies themselves,” Wood said.

Meiburg, the former EPA deputy administrator, noted the Clean Air Act and Clean Water Act are decades old. While Congress is deadlocked and the court's conservative supermajority is disinclined to allow the EPA and other agencies to meet new challenges, there's not much recipe for success, he said.

Instead, Meiburg said, victories could be won by focusing on state policies. In North Carolina, the Republican-controlled Legislature worked with the Democratic governor to set a goal of 70% greenhouse gas reduction by 2030, he said.

“I think the (Supreme Court decision) takes away a tool that could have been very helpful,” Meiburg said. “But it didn't take away every tool.”

Kyle Bagenstose covers climate change, chemicals, water and other environmental topics for USA TODAY. He can be reached at kbagenstose@gannett.com or on Twitter @kylebagenstose.

This article originally appeared on USA TODAY: Climate change fight gets harder after Supreme Court rules on EPA case

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