Electricity generation, as at this coal-fired plant, is second only to transportation in terms of US greenhouse gas emissions George Frey/ Bloomberg via Getty Images
On 30 June, the US Supreme Court issued a ruling that could set back efforts to reduce greenhouse gas emissions as well as limit the ability of the Environmental Protection Agency (EPA) to regulate other environmental issues.
The decision in West Virginia v Environmental Protection Agency says the EPA does not have the authority to control greenhouse gas emissions from power production by requiring changes to power production across entire electrical grids.
The opinion was written by John Roberts, the court’s chief justice, joined by four conservative justices. Neil Gorsuch wrote a concurring opinion, meaning he agreed with the conclusion of the majority but stated his reasons separately. The court’s three liberal justices dissented.
Elena Kagan wrote in the dissent, “Today, the Court strips the EPA of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time’.”
What was the West Virginia v EPA case about?
This case has its roots in a complicated legal fight over who has authority to regulate greenhouse gas emissions from power plants. Electricity production is the second largest source of greenhouse gas emissions behind transportation in the US.
In the 1960s, Congress passed the Clean Air Act, giving the EPA authority to enforce regulations to improve air quality. In 2015, the Obama administration’s Clean Power Plan set guidelines for states around carbon dioxide emissions from power plants. Twenty-four states sued, arguing the plan overstepped the authority granted to the EPA by the Clean Air Act.
In 2019, before the Supreme Court ruled on that issue, the Trump administration replaced the Clean Power Plan with the Affordable Clean Energy rule, which was less strict. A group of states sued, and a federal circuit court blocked the rule. That left the incoming Biden administration with a “clean slate” to set rules on greenhouse gas emissions.
It didn’t last long. A number of coal companies and coal-producing states, led by West Virginia, petitioned the Supreme Court to reconsider the circuit court’s decision.
Many legal observers were surprised when the Supreme Court agreed to hear the case, since neither the Clean Power Plan nor Affordable Clean Energy rule had actually gone into effect.
Environmental and climate advocates were alarmed that the decision to hear the case signalled that the court’s new 6-3 conservative majority intended to limit the scope of the EPA’s authority to regulate greenhouse gas emissions. Other observers thought the court might go even further, limiting the authority of federal agencies to regulate more broadly.
How did the Supreme Court rule?
In the 6-3 opinion, Roberts wrote that the Clean Air Act does not give the EPA authority to regulate greenhouse gas emissions at power plants by making sweeping changes to entire grids, as opposed to requiring individual emitters to make reductions.
Roberts explained the reasoning by citing the “major questions doctrine”, which says that when deciding on significant issues, agencies must have clear congressional authorisation. Roberts argued the Clean Air Act did not offer clear authorisation.
The dissenting justices, citing the Intergovernmental Panel on Climate Change’s dire assessments of the impacts of climate change, wrote the ruling “deprives EPA of the power needed – and the power granted – to curb the emission of greenhouse gases.”
The decision comes on the heels of several explosive decisions from the court, including the decisions to expand gun rights and to overturn Roe v Wade, the 1973 ruling that protected the right to abortion.
What kind of impact could this ruling have on efforts to combat climate change?
In short, it could have a big impact, but not as big as some had feared.
The ruling is likely to throw sand in the gears of the Biden administration’s plans to make US electricity generation carbon-free by 2035. However, it falls far short of limiting the agency’s discretion to regulate on all issues. That said, it could be a “canary in the coal mine” for how this court will interpret agencies’ authority to use their expertise, says Dena Adler at New York University School of Law.
While the ruling limits the EPA’s authority, Congress could still pass legislation on greenhouse gas emissions or other environmental issues, or grant the agency that authority. Given current congressional gridlock, that is unlikely to happen anytime soon.
“The ruling curtails EPA’s authority to regulate pollutants on the basis of protection of the earth’s climate and will result in unconscionable delays, given that Congress is not poised to address this issue,” says Lynn Goldman at George Washington University in Washington DC.
Conservative lawyers say leaving it up to Congress would make regulators more accountable to the public, though others argue Congress is not well-suited to respond quickly to often technical, fast-changing environmental issues. They also point out that the EPA has other avenues to control greenhouse gas emissions, for instance through tailpipe emissions standards, or by setting rules for individual power plants.
“There are many, many other steps the EPA already has the statutory authority to take to reduce emissions,” says Joseph Bingham, an attorney at Mountain States Legal Foundation, which wrote an amicus brief on behalf of the plaintiffs. The agency can still regulate carbon dioxide as it would any other pollutant, he says.
And it is worth pointing out that reductions are possible without regulations. The emissions targets set in the Clean Air Act, for instance, were met a decade ahead of schedule even though the rule never went into effect.
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