Climate Change: Another Victim Of The Politicization Of The Supreme Court
by Reinout Debergh
On June 30, the US Supreme Court delivered a ruling that limits the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gases in the country . But it is impossible to see this ruling outside the wider political context. Thus it is important to first provide a brief description of the US Supreme Court, before discussing the case itself.
The Supreme Court and the wider context
The US Supreme Court is the highest court in the United States of America. It consists of nine justices which are nominated by the President and confirmed by the Senate . They are appointed for life . While it has both original (hearing a case for the first time) and appellate (reviewing cases that were already heard in lower courts) jurisdiction, it is the latter that is most used. It can hear cases regarding the Constitution, federal law and regulations (which is the case here) and treaties. It is up to the justices to decide whether to take a case and at least four justices need to agree to do so .
As the US has become more and more polarized, the Supreme Court has been affected as well [5, 6]. While, according to a recent study, this has been the case for a while, it was Trump’s presidency that significantly shifted the balance [7, 8]. Trump appointed three conservative justices during his term resulting in a 6-3 majority compared to the previous 5-4 majority . It is this strong conservative majority that has resulted in a recent series of conservative-leaning rulings; be it on guns, abortion, and now also climate change . Given that justices are appointed for life and Trump’s appointed justices are comparatively young, more such rulings could be coming .
What is the case about?
In 2015, the Obama administration created the Clean Power Plan (CPP) which set limits on carbon emissions from power plants . The limits were based on a Best System for Emission Reductions (BESR). The BESR consisted of three measures or ‘building blocks’ as they were referred to: The first one was to implement practices that burn coal more cleanly. It was similar to measures usually adopted by EPA but would only provide limited reductions. Building blocks two and three were new and involved ‘generation shifting’ at the grid level: a shift in electricity production from higher-emitting to lower-emitting producers. Building block two entailed the shift from coal to gas power plants while three saw the shift from coal and gas power plants to renewable energy sources (such as wind or solar) .
Translating these into limits was based on models that considered costs and energy security. Compliance could be met by cleaning up existing plants, building cleaner new ones or buying emission credits from other power plants. The EPA projected that through these measures the share of coal in electricity generation could decrease from 38% in 2014 to 27% in 2030 .
But 24 states sued the EPA arguing that the Clean Air Act (a regulation from the 1960s to improve air quality) did not provide the EPA with the necessary authority. But before the Supreme Court could provide a ruling, the Trump administration replaced the CPP in 2019 by the Affordable Clean Energy rule . The rule was similar to building block one of the CPP. In a next turn, other states challenged the repeal of the CPP at the federal court in Washington, D.C. They won and in January 2021, the federal court vacated both the repeal of the CPP as well as the Affordable Clean Energy rule .
However, implementation of the CPP was postponed per request by the Biden administration to avoid the CPP going into effect immediately to give the EPA more time to potentially develop a new rule. The EPA stated its intention not to implement the CPP at all but to engage in new rulemaking . But despite that, a number of coal companies and coal-producing states, led by West Virginia (hence the case name West Virginia vs EPA), petitioned the Supreme Court to review the federal court’s decision. This is the case that, on June 30, the Supreme Court published its ruling on .
What did the Supreme Court decide and what are the consequences?
The Supreme Court ruled that Congress had not granted the EPA authority in the Clean Air Act to set emission limits based on generation shifting . It stated that when deciding on major issues, agencies must have clear authorization from Congress. This reasoning is known as the ‘major questions doctrine’ .
So what are the consequences of this ruling? Despite the ruling above, the Court did affirm that the EPA has the authority to regulate CO2 from power plants. It was more a question of how to do that. While the most efficient way (shifting to renewables) was taken away by the Court, it leaves open possibilities for the EPA to:
- Set stringent existing source standards based on directly applied pollution control technologies and techniques (such as carbon capture or co-firing with cleaner fuels)
- Establish a market-based mechanism between fossil power plants .
It should be noted that in 2021, coal’s share in the energy mix of the US was 22%, similar to renewables (20%) and nuclear (19%) . This is already 5% below the levels projected by EPA for 2030 . However, the war in the Ukraine may affect this as rising gas prices mean that coal becomes more competitive again .
Perhaps the most significant consequence of this ruling may be bigger than climate change. The use of the major questions doctrine opens the door to targeting other regulations established by agencies whom Congress may not have granted an explicit authority such as in consumer protection and workers’ safety . This is problematic as Congress typically writes laws in broad terms so that they can be adjusted to changing circumstances and problems by the technical experts of the agencies .
The Court’s ruling is a step backwards but ultimately not that surprising given the series of rulings that were delivered at the end of June by the conservative majority. The BBC called it a setback for President Biden . But this is a setback for our planet, for life and for future generations. Fortunately, it is not over as it is now up to the EPA and the Biden administration to find new ways to address the climate crisis. Yet despite having a Democratic President and Congress, it is the Republican party that is currently enjoying the biggest wins.
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