The Supreme Court issued its decision in West Virginia v. Environmental Protection Agency, limiting the agency’s capacity to control power plant emissions. Read the judgement and the dissent here, and learn more about the ruling’s implications for climate action here.
The Supreme Court is poised to rule on a significant climate dispute that will determine the instruments available to the federal government to reduce greenhouse gas emissions. The lawsuit, West Virginia v. Environmental Protection Agency, began years ago as a dispute over how much authority the EPA has to force power plants to reduce pollution — but it has now evolved into a larger debate over how much power federal agencies have to enforce various regulations.
With the Biden administration’s climate plans relying on drastically slashing CO2 emissions from power plants, the case is being closely watched by environmentalists. The Supreme Court’s decision could come down, so here’s a quick primer on why this case is such a nail-biter.
WHAT IS WEST VIRGINIA V. EPA ABOUT?
The complaint is based on a disagreement about the Clean Air Act, a fundamental environmental statute in the United States that outlines the EPA’s responsibility to maintain the nation’s air quality by regulating pollution. Since 1970, EPA Clean Air Act action has resulted in considerable reductions in important pollutants such as particulate matter and nitrogen oxides.
Former President Barack Obama went even further in 2015, using the Clean Air Act to mandate the Clean Power Plan, a new set of restrictions for US power plants. The new plan, in particular, established restrictions for carbon dioxide emissions, a greenhouse gas that is the principal cause of climate change. By regulating those emissions, the plan pushed states to transition to more clean energy from sources like solar and wind.
The plaintiffs want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy.
Coral Davenport
But the proposal didn’t last long. Two dozen states, including West Virginia, sued the EPA in response, and in 2016, the Supreme Court decided to put the Clean Power Plan on hold as the case made its way through court.
By 2019, the Trump administration has repealed the Clean Power Plan and replaced it with its own, lesser greenhouse emission rules known as the Affordable Clean Energy rule. Former President Donald Trump’s EPA also determined that the Obama administration had gone too far in using the Clean Air Act to push for reductions in greenhouse gas pollution across the entire power sector, determining instead that its authority to regulate pollution was limited to what a power plant could do within its “fenceline.”
Under the Trump administration’s interpretation of the Clean Air Act, the EPA might be able to push a power plant to install equipment that captures CO2 on-site so that it doesn’t escape into the atmosphere — but it can’t push a state to phase out fossil fuel power plants in favor of solar or wind farms.
In the meantime, a different group of states successfully sued to block the Trump plan, leaving it up to President Joe Biden’s EPA to craft an entirely new rule. West Virginia appealed that ruling to the Supreme Court, and here we are. It’s now up to the Supreme Court to decide which interpretation holds sway, even though neither Obama nor Trump’s greenhouse gas rules ever went into effect.
WHY IS THIS CASE IMPORTANT?
A clean power grid is absolutely crucial to cleaning up the US’s frightfully dirty climate record.
As part of its decision to rejoin the Paris climate deal after Trump attempted to withdraw, the Biden administration committed the US to decreasing global warming emissions by at least 50% this decade compared to peak pollution levels in 2005. The Biden administration intends for the US power sector to be totally carbon-free by 2035. All of this is to meet a critical deadline that the entire planet confronts. To limit climate change from exceeding 1.5 degrees Celsius over pre-industrial levels, global greenhouse gas emissions must reach net zero by roughly 2050. Beyond that point, millions more people are expected to be vulnerable to climate-related calamities such as severe droughts, deadly heat waves, and coastal flooding.
Unfortunately, the current electrical grid is built primarily on fossil fuel power plants. The power sector alone is responsible for about a quarter of US greenhouse gas emissions. The only source of pollution bigger than the power sector in the US is transportation — and transitioning from gas-guzzlers to electric vehicles only becomes a cleaner choice if the grid runs on carbon-free energy.
Democrats have been attempting for months to enact legislation requiring utilities to use more sustainable energy, but it has been stuck in a congressional stalemate. That makes executive authority even more critical for the administration’s climate change efforts. Currently, Biden can try to use government agencies like the EPA to crack down on pollutants without relying on Congress. However, with a conservative majority on the Supreme Court, including three Trump appointments, a decision that limits the EPA’s authority to do so could be issued.
This fight is actually even bigger than the Clean Air Act or the EPA. In West Virginia v. EPA, “The plaintiffs want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy,” Coral Davenport writes for The New York Times. The case is the result of years of a coordinated strategy to hamstring the executive branch’s ability to regulate industry.
HOW MIGHT THE SUPREME COURT RULE?
We don’t know yet, but given the court’s makeup, environmentalists are unlikely to be pleased. In one scenario, the court may opt to focus on the Clean Air Act and what its language implies about the EPA’s authority over power plants. In that circumstance, the Clean Air Act may no longer be a viable vehicle for the EPA to reduce greenhouse gas emissions from power plants. That restricted interpretation may allow the EPA to find alternative ways to regulate greenhouse gas pollution — just not through the Clean Air Act.
On the other hand, the Supreme Court may opt to zoom out and go beyond the Clean Air Act’s terms. This is where the Biden administration’s ability to rely on the executive branch to get anything done on climate change — or other agendas that would need federal agencies to develop and enforce rules on industry — could begin to fray. The court could limit a government agency’s ability to expand its powers beyond what Congress explicitly wrote into law.
Courts often defer to a government agency’s competence in interpreting more obscure statutes, thanks to a 1984 theory known as “Chevron deference.” So, even if CO2 isn’t directly mentioned in the 1970 Clean Air Act, the EPA could conclude that it makes sense to address greenhouse gas emissions in light of today’s global catastrophe under this approach.
Instead, the Supreme Court could seek to reinforce the “big questions doctrine,” which states that the court is not need to defer to federal agencies in matters of substantial national significance that Congress has yet to expressly state in legislation.
