West Virgina v EPA: A New Precedent is Set

As you've probably heard, in a 6-3 ruling on June 30th, the US Supreme Court's conservative majority ruled in favor of West Virginia in a stunning (but unsurprising) legal move that limits the Environmental Protection Agency's power to combat climate change.

Dissenting Justice Elena Kagan stated: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time. 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.” 

While the case was filed by West Virginia, the challengers behind it include a group of 27 Republican attorneys general, many of whom come from states that traditionally back the fossil fuel industry. 

The decision is the first time a Supreme Court majority opinion has explicitly cited the relatively new “major questions doctrine” to justify a ruling. The doctrine holds that when addressing issues of major national significance, a regulatory agency must have clear statutory authorization from Congress to take certain actions — and cannot rely on its general agency authority.

Historic Context And Congressional Authority of The EPA

In 1970, Congress granted the Environmental Protection Agency broad authority to select the “best system of emission reduction” for power plants via the Clean Air Act. Since then, the EPA has handled everything from from hiring experts to making and enforcing rules. The catch? Because the Clean Air Act was created over 50 years ago, before climate change was talked about like it is today, it makes no explicit mentions of carbon emissions. However, one reason that Congress makes broad delegations like Section 111 is so a federal regulatory agency can respond to problems as they arise. As Justice Kagan put it, "Congress knows what it doesn’t and can’t know when it drafts a statute; and therefore gives an expert agency the power to address issues — even significant ones — as and when they arise." Despite this, the conservative majority ruled to override that historic legislative choice, depriving EPA of the power needed — and granted — to curb the emission of greenhouse gases.

Section 111 of the Clean Air Act directs the EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” Of course, carbon dioxide and other greenhouse gases fit that description, and the EPA has since served as the Nation’s “primary regulator of greenhouse gas emissions.” Naturally, this includes fossil-fuel (mainly coal and natural gas) power plants, which are currently responsible for about 1/4 of the nation’s greenhouse gas emissions.

The 2015 Clean Power Plan

To help fulfill the responsibilities assigned to them by US Congress, the EPA issued the Clean Power Plan in 2015. The premise of the Plan was that operational improvements undertaken by individual plants would either “lead to only small emission reductions” or would cost far more than a readily available regulatory alternative. That alternative — which fossil fuel-fired plants were already using — is called generation shifting.

In an unprecedented move, the Clean Power Plan was temporarily blocked by the Supreme Court in 2016 — and then repealed and replaced by the Trump administration in 2019. However, even without the Plan, the industry exceeded the targets that it had set, mainly through the generation shifting techniques that were outlined. In fact, the power industry overwhelmingly supports the EPA in this case, which is perhaps unsurprising given that they, too, want to achieve significant CO2 emissions reductions in a cost-effective way.

What is Generation Shifting?

Generation shifting refers to shifting electricity generation from higher emitting sources to lower emitting ones — more specifically, from coal-fired to natural-gas-fired sources to renewable energy sources like solar and wind. To achieve this, a power company might divert its own resources to a cleaner source, or participate in a cap-and-trade system together with other companies to achieve the same emissions reduction goals.

Interestingly, the conservative majority doesn't dispute that generation shifting is the best system for reducing power plants’ carbon dioxide emissions. It just doesn't believe that a federal agency like the EPA should have the authority to enforce it without a very clear designation from Congress. 

What does this mean For Air Quality and Progress On Climate Change Going Forward?

To be clear, the ruling doesn't strip the EPA's power to regulate greenhouse gases, is unlikely to change how the Biden administration regulates power plant emissions, and will do little to bolster the coal industry. What it will do is make it more difficult for the Biden administration to achieve wider climate change objectives like those outlined in the Biden Climate Plan. Specifically, the goal to zero out carbon emissions from power plants by 2035 and cut the country’s emissions in half by 2100 will be much more challenging to achieve.

Given the conservative majority, Biden’s EPA was always more likely to draft a new plant-specific greenhouse gas standard than to try to resurrect the Clean Power Plan. That pathway is still intact after the Supreme Court declined to strip the agency’s broader authority to regulate greenhouse gas emissions.

But it will make it even more difficult to deploy regulations to curb greenhouse gases. Agencies will need to demonstrate they have explicit congressional approval to pursue major regulatory changes, making it very difficult to use existing laws for climate purposes. That's because by ruling that the gridlocked US Congress must establish any actions moving forward, they've guaranteed that the process to get any new environmental rules approved will be a long and arduous road. And if the current status of the Biden climate plan is any indication, many of these efforts will be stopped or stalled indefinitely. It also encourages Republican attorneys general to challenge other regulations.

What Can We Do About It?

While the Supreme Court majority's decision was a setback for the regulation of polluting industries and for overall efforts to address climate change, there's still hope. The Biden administration has vowed to do everything that it can with the federal powers at its disposal to address climate change, and will likely propose new carbon regulations that are carefully designed to hold up against the Supreme Court majority's ruling. So what can we do to support these efforts? For one, it's more important than ever to vote for candidates up and down the ballot box that support policies that address climate change. 

Here at One Tree Planted, we will continue doing what we do best. After all, reforestation has consistently been touted as a top climate change solution. And indeed, planting the right trees in the right place at the right time is an essential part of a holistic strategy for addressing climate change. Want to be part of the solution? Plant trees today!