SCOTUS Tightens its Noose Around Another Federal Agency: the EPA
Environment Policy Brief #144 | By: Todd J. Broadman | July 9, 2022
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The recent SCOTUS decision in the West Virginia vs. EPA case, though not unexpected, is further support for a clear ideological direction underway at the Court. The case was brought by several Attorney Generals along with mining industry plaintiffs from major coal producing states. The 6-to-3 decision in favor of the plaintiffs applies directly to the EPA’s authority to regulate the carbon emissions of power plants under the (Obama) 2015 Clean Power Plan. In the majority opinion, Justice Roberts emphasized that the EPA does not have the explicit authority to force power plant operators to eliminate or otherwise change their fuel source. In this instance, the elimination of coal in favor or less polluting sources.
The significance of the Clean Power rule is that it recognizes the process of generating electricity by utilities is the second major source of greenhouse gases behind transportation. Going back to 2007 and the SCOTUS case Massachusetts v. EPA, the agency’s right to regulate greenhouse gases was established under the Clean Air Act.
In a sense, this ruling is pre-emptive because the EPA had not yet implemented its intention to force the industry to change its fuel sources. The threat of the EPA doing so was enough to trigger the lawsuit. This lawsuit is the unfolding of a deeper form of conservative activism aimed at overturning “legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.”
Senate minority leader Mitch McConnell has been at the center of this strategy to curtail government regulation at the EPA and other federal agencies; a strategy that has used every opportunity to stack the judiciary with like-minded conservatives. The coal industry in his home state of Kentucky is symbolic of the values that are making their way before the bench. Under Trump, McConnell and the considerable resources of the Federalist Society and similar conservative action groups were able to maneuver into place three Supreme Court justices, 54 appeals court judges, and 174 district court judges. To date, President Biden has appointed 68 federal judges.
To be sure, this ruling does not impede the EPA’s authority to regulate pollution under Section 111, but does, according to Andres Restrepo, a senior attorney at the Sierra Club, “remove the most important tool that EPA had in its tool kit.” And while EPA regulations on carbon dioxide emissions from cars and trucks, as well as methane emissions from oil and gas infrastructure remain intact, this Supreme Court ruling invites further legal challenges from industries who feel unfairly regulated.
As Michael Oppenheimer, professor of geosciences at Princeton University, commented: “If the Supreme Court uses this as an opportunity to really squash EPA’s ability to regulate on climate change, it will seriously impede U.S. progress toward solving the problem.”
This ruling adds another obstacle to an already chaotic political landscape when it comes to changes necessary to address global climate and planet-wide environmental cataclysm.
Rather than lead the world as a model of practical action that reduces CO2 emissions, the U.S. judiciary is essentially endorsing the idea that corporations know best how to regulate and in the absence of detailed legislation they must be trusted to do so. Similar cases are presently making their way through the federal courts with the aim of blocking the government’s ability to regulate pollution. “Attorney Generals’ strategies are becoming more and more sophisticated,” according to Paul Nolette, professor of political science at Marquette University. They act in fear of the “deep state.”
The Biden administration has good reason to be disappointed in this ruling, yet at the same time may see this as an opportunity to confess their own contradictory and inconsistent climate policies: on the one hand declaring that all utilities be powered by sustainable energy by 2035, and on the other, approving a record number of oil drilling leases. The ambition to halve greenhouse gases by 2030 is now plainly impractical. All of this while the nooses around the necks of regulating agencies will continue to tighten.
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In Judge Elena Kagan’s dissenting opinion (joined by Justices Stephen Breyer and Sonia Sotomayor), she sounded the alarm bells: “Whatever else this Court may know about, it does not have a clue about how to address climate change.” Authority is being stripped from the field experts is the sobering conclusion. “The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.”
Existing EPA rules that regulate sulfur dioxides or particulates, regulations which were not contested in this case, are sufficiently expensive for coal burning utilities to convert their operations to natural gas and those conversions are expected to continue. The primary driver though is economics; natural gas is cheaper to use and provides over 35% of U.S. electric generation. But natural gas too is a climate menace and is being replaced with wind, solar, and nuclear.
The conversions though, are not happening fast enough to meet carbon cap goals. If nothing else, this case lays bare that our branches of government refuse to agree and coordinate their actions to achieve long-term environmental wins. Portending the dysfunction to come, Sally Katzen, co-director of the Legislative and Regulatory Process Clinic at New York University School of Law, opined that, “I don’t think this is the culmination of their [conservative action groups] agenda. I think it’s just the beginning.”
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