This story originally appeared in SalonJune 30, 2022
https://www.salon.com/2022/06/30/doomsday-decision-a-dagger-for-efforts-to-curb-carbon-emissions-experts-say/?utm_source=pocket_mylist

Doomsday: Supreme Court decision a dagger for efforts to curb carbon emissions, experts say

"We don't have another option for large-scale reductions in greenhouse gasses"

By Eric Schank

Published June 30, 2022 3:52PM (EDT)

Does the Environmental Protection Agency have the power to limit greenhouse gas emissions from existing power plants?

Most voters think so, but the Supreme Court just delivered a devastating blow to the EPA on Friday in a 6-3 vote. The ruling on West Virginia v. EPA razed the agency's legal authority to regulate the electrical grid with significant consequences for the Biden Administration's climate agenda, which climate scientists already call the bare minimum. Without strict regulation, power plants remain the second-largest U.S. source of carbon emissions contributing to climate change.

Conservative justices on the bench have already proven their willingness to ignore popular sentiment and judicial precedent in a turbulent final month of decisions. The bombshell Dobbs v. Jackson Women's Health decision stripped millions of Americans of a fundamental right to bodily autonomy last week. SCOTUS disregarded half a century of judicial precedent when it overturned Roe v. Wade. Unlike abortion access, however, the EPA's authority to limit pollution is a federal law.

"The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy," Justice Kagan wrote. "I cannot think of many things more frightening."

Justices Sonia Sotomayor Stephen Breyer joined Kagan in a dissenting opinion, condemning the decision of the court to override a power Congress clearly established over 50 years ago.

RELATED: "Cataclysmic": Conservatives on Supreme Court rule against EPA's plan to combat climate change

Invoking the "Major Questions Doctrine," the court held that Congress did not grant the EPA the authority to implement emissions caps that would shift the structure of the electrical grid in Section 111(d) of the Clean Air Act as the agency did in the moot Obama-era Clean Power Plan. The good news is that current greenhouse gas regulations will still stand. Until 2007, when the Supreme Court issued a landmark decision on Massachusetts v. EPA, that not only can the EPA regulate greenhouse gasses but the EPA must regulate them or face litigation. The case remains the most significant piece of U.S. climate litigation for that reason.

Justice Kagan wrote, "I cannot think of many things more frightening."

West Virginia v. EPA though, revolved around 42 U.S.C. § 7411(d), one of many provisions Congress has added to the Clean Air Act over the years. The provision from 1970 delegated more powers to the EPA to determine hazardous air pollutants and work with states to restrict them at existing, stationary sources, namely power plants. Accounting for 25% of all US greenhouse gas emissions, electrical generation remains the second-largest U.S. contribution to climate change.

Even as the summer months bring heavier strain to the grid and supply chain disruptions persist, new polling from Data for Progress and Evergreen Action suggested that 60% of eligible voters believe the EPA should be able to regulate power plant pollution that contributes to climate change. Less than a quarter of voters opposed such restrictions. Before the decision, 192 members of Congress also wrote an amicus curiae brief in support of the respondents.

On Feb. 27, just one day before the Supreme Court heard arguments for West Virginia v. EPA, an expansive report from the United Nations reaffirmed that the fossil fuel industry poses a significant hazard to human health. Even if all fossil fuel emissions stopped today, climate change would still drive extreme weather events for decades to come. Heat waves alone will lead to more premature deaths and exacerbate various health conditions, as will natural disasters like wildfires that get much of the spotlight. President Biden's goal of a 50% reduction in emissions by 2030 hinges on a transition to clean energy.

With Congress gridlocked on carbon policy, EPA emissions standards have been the only effective tool to directly reduce greenhouse gas emissions. Some have suggested serious consideration of carbon sequestration as an alternative solution. Director of The George Washington University Climate and Health Institute Susan Anenburg told Salon this is not enough to stave off climate change. She added that pollutants like NOx, SO2, acid rain, heavy metals, and ground-level ozone would still impact air quality whether they could be directly or indirectly tied back to smokestacks.

"We don't have another option for large-scale reductions in greenhouse gasses," Anenburg said, noting that municipalities may well be able to reduce greenhouse gas emissions independently of cooperation in Congress still.

Without a system-wide approach, old power plants will freely emit massive amounts of greenhouse gasses and other pollutants, which carbon sequestration can not address, for decades. Under President Donald Trump, the EPA repealed the rule, suggesting the EPA overstepped its authority under the Clean Air Act before any challenges made their way to the Supreme Court. A 2021 D.C. Circuit Court, however, opined that the EPA had far more power under the Clean Air Act than they have used.

According to dissenting justices, the Supreme Court has obstructed the EPA's legal authority to curb carbon emissions from the beginning.

"The majority's decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it," Justice Kagan wrote simply. "But that is wrong."

On a basic level, West Virginia v. EPA concerns the D.C. Circuit Court ruling, which invalidated the repeal of the Clean Power Plan and scrapped President Trump's Affordable Clean Energy rule that was put in its stead. Only briefly in place during the Obama Administration, the Clean Power Plan never impacted a single power plant. Because its emissions targets have already been met the EPA never put it back in place though. 

"There was no need for the court to take this case."

Director of Strategic Legal Advocacy at Earthjustice Kirti Datla says that without a rule to challenge, petitioners did not have much standing in the case, but since conservative justices on the Supreme Court proceeded with the case anyway, the U.S. and the world will have to deal with the consequences.

"There was no need for the court to take this case given that the Biden administration told the court that it was planning to write a new regulation and there would have been litigation over that regulation," Datla said about the highly unusual move by the Supreme Court.

Coal industry lawyers joined the attorney generals of West Virginia and 16 other states in court to challenge the premise that the EPA could use such powers to restructure the energy sector itself. It's not a coincidence that other fossil fuel industries did not join though. The regulation would have made coal-powered industries uncompetitive as a result of the inefficiency of coal with a cap would force coal-fired power plants to shut down, which was the intention of the Clean Power Plan. Coal has the largest carbon footprint and the dirtiest one to boot, according to Anenburg.

"We absolutely can not just sit back and wait for market forces to organically move us away from coal," she expounded. "It just isn't happening fast enough. It continues to produce massive amounts of carbon dioxide as well as air pollution, both warming the climate and sickening people and surrounding neighborhoods in addition to people across the country."

Petitioners argued that Congress should have to explicitly dictate regulations, urging the court to consider the potential economic impacts of a rule that no longer exists to prevent future EPA standards from forcing them out of business, citing litigation of tobacco corporations and the FDA's treatment of them. 

"We absolutely can not just sit back and wait for market forces to organically move us away from coal"

"This is really a step further than anything we have said before," Justice Sonia Sotomayor responded to this suggestion. "All of our other cases, whether its regulation of tobacco or regulation of evictions under major questions doctrine, have not addressed the 'how.' Now … you want us to look at the 'how.'"

A decision that should have been a relatively simple statutory interpretation now has broad implications as a result of the Major Questions Doctrine. The invocation of the doctrine will tether the authority of agencies like the FDA and CDC to Congress in an expansive gray area.

By Eric Schank

Eric Schank is a fellow at Salon writing for science and health. He holds a BA in environmental studies from Oberlin College.