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Supreme Court deals climate change fight a major blow in EPA ruling

The Brunner Island power plant in Pennsylvania. (Google)

In a blow to the Biden administration’s efforts to address the warming caused by greenhouse gas emissions, the Supreme Court on Thursday ruled that the Environmental Protection Agency does not have the authority to regulate greenhouse gas emissions from existing power plants, a decision aimed at those power plants running on coal.

But the 6-3 decision, authored by Chief Justice John Roberts and issued on the last day of the session, is also likely to have far broader impacts, not only on environmental regulation but also on actions by other federal agencies.

“I read it as having significant effects on statutory interpretation and administrative law going forward,” said Katrina Kuh, Haub Distinguished Professor of Environmental Law at Pace University School of Law.

But she said it will likely have particular impacts on environmental law.

“It is a significant blow to efforts to use the Clean Air Act to control greenhouse gas emissions,” she said.

While New England is down to a few highly polluting coal power plants, Connecticut still faces the effects of pollution from such plants to our west and the effects from climate change more broadly.

Connecticut Attorney General William Tong, who has joined dozens of lawsuits and other actions aimed at fighting climate change, called the court action a major blow to federal efforts to fight it.

“This is a serious setback, but we cannot lose sight of what is at stake and what is urgently needed to fight the climate crisis,” he said in a statement. “Outdated and expensive coal plants are causing enormous damage to our environment and economy, and we cannot let this decision stall our transition to clean, renewable, and truly affordable power. This is a radical opinion that signals a dramatic shift in the Court’s approach to long-settled precedent. I expect today’s decision is just the beginning of this Court’s efforts to undermine agency authority, not just within the EPA but across the executive branch.”

While the decision only ruled on the issue of regulating greenhouse gas emissions in existing fossil fuel power plants, its reasoning drew on something known as the “major questions doctrine,” which essentially says if an agency wants to regulate something that is not already in statute and that has a major economic or political impact, it needs to get specific authority from Congress.

“Its judgment, I think, is guided by what it thinks is a major political or economic controversy,” Kuh said. “I think the vast majority of Americans maybe aren’t too concerned about loss of profits by coal companies and are really concerned about climate change.”

U.S. Sen. Richard Blumenthal (D-Conn.), calling the decision a “senseless misstep” that “strait jackets our fight against the climate crisis,” was equally critical of the the Court’s reasoning.

“Its supposed ‘major questions’ doctrine is concocted from legal thin air — an outcome-driven bogus jurisprudential tenet. Once again, the Court’s misguided majority have shown that they are politicians with robes, pushing a far-right fringe agenda that they disclaimed as nominees before the American people,” he said.

“The Supreme Court is not Congress, and their unceasing attempt to impose a right-wing political agenda on the country is a threat to democracy,” U.S. Sen. Chris Murphy (D-Conn.) said in a statement. “But Congress cannot let this politically supercharged court stop us from taking action to combat climate change. No less than the fate of the planet is at stake.”

The Clean Air Act does not cite climate change or greenhouse gas emissions. The EPA and other agencies have long relied on what’s called the Chevron deference — a ruling from the court in 1984, considered a bedrock of administrative law, that gives agencies, not courts, the leeway to address certain issues that are not specifically cited in law as long as the agency’s interpretation is reasonable.

It has been especially useful for the EPA, using the rationale that its matters are so complex, detailed, technical, time-consuming and changeable due to the evolution of scientific knowledge that they should be left to the experts within the agency.

“Bottom line is federal environmental law is dead. Honestly, we’ve reached the end of the road on federal environmental law, because we’re not going to get brand new environmental statutes in the foreseeable future,” said Patrick Parenteau, professor emeritus of environmental law at Vermont Law School. “The only thing you can hope is that the agencies can rely on their existing authority to deal with these new threats, like forever chemicals and other things.

“So we are really stuck in a terrible, terrible place in terms of federal environmental law.”

In a statement, Bradley Campbell, president of the New England-based Conservation Law Foundation, said the decision had hobbled EPA’s ability to reduce power plant pollution.

“By arbitrarily limiting EPA’s explicit and broad authority under the Clean Air Act to require the use of less-polluting systems, the Court has consigned millions of Americans to more illness, shorter lives, and greater poverty in an overheated climate, while giving itself nearly unlimited authority to invalidate protections and safeguards intended by Congress.”

The case, known as West Virginia v. EPA, stems from two carbon-reducing power plans that were never implemented. The first was the Clean Power Plan, devised in the Obama administration, which targeted emissions from coal plants. Courts had prevented that from going into effect.

5 comments

George July 1, 2022 at 6:21 am

TOTALLY AWESOME!

LETS START ROLLING COAL AGAIN!!

I’ve said it before. The EPA is a joke!

Burning more diesel fuel and running motors hotter just so you do not see a little soot does absolutely NOTHING to help the environment.

Read my past posts about this and how ethanol in gas hurts more than anything.

Priscilla Feral July 1, 2022 at 10:30 am

This horror was brought to us by three Republican Presidents whose appointments to the Supreme Court made choking on more polluted air possible: George H.W. Bush, George W. Bush and Donald Trump.

Joe in Norwalk July 4, 2022 at 10:32 am

“Connecticut still faces the effects of pollution from such plants to our west ”
____________________________________________________________

to the WEST is China building 129 more coal fired plants as of now. For those not old enough to remember we are far cleaner now since the 1960s when it comes to cleaner air and water.
You could not see Manhattan when crossing the GWB back then.

I don’t hear too many “green warriors” calling radio Beijing when it comes to cleaner energy. Just a clue. The earth is oval and the upper air streams basically go from east to west.

John C. Miller, Jr. July 5, 2022 at 11:20 am

The EPA is part of the Executive Branch and does not have the authority to write laws. Laws are supposed to be written by the Legislative Branch (e.g. CONGRESS!!!). What the Court really did is to tell Congress to get off their asses and do their job!!!

Michael McGuire July 5, 2022 at 2:38 pm

“The Supreme Court is not Congress, and their unceasing attempt to impose a right-wing political agenda on the country is a threat to democracy,” U.S. Sen. Chris Murphy (D-Conn.)

Sen. Murphy, does the term ‘taxation [or policies/rules] without representation’ ring a bell?

The supreme court ruling just ‘saved our democracy’ by removing unconstitutional and arbitrary powers given to unelected bureaucrats (on the left and right). I would call that saving our democracy, no?

To Tong, Lamonte, Blumenthal, et. al. you might have a bit more credibility if gas were at say $2.50/gal. But at near $5.00/gal on top of trillions of unfunded spending (plunging us into recession), well you just lost me on that one. You never asked, you never laid out a reasonable plan of action, you never allowed for decent or discussion, you just imposed it on all of us. Then blamed it on others.

Maybe, just maybe these types of SC ruling may lead to meaningful, bi-partisan discussions about climate change, and many other questionable actions taken by our government.

I believe this is an essential step in stopping this incessant lurching from Right to Left and back, which does none of us, or at least 95% of us, any good.

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