October 4, 2022

The Supreme Court has just corrupted a major policy tool that the United States may have used to tackle climate change. Today’s decision on West Virginia v. Environmental Protection Agency Essentially, he says, the EPA should not be allowed to determine whether the United States gets its electricity from clean or dirty energy sources.

This hampers the agency’s previous efforts to shift the United States away from fossil fuels to clean energy sources such as wind and solar through energy sector regulation. With the new ruling, the agency may be able to push the power plant to install technology to reduce its emissions on site, but it cannot influence states’ decisions about where they get their energy from in the first place. To make matters worse, the court’s decision could erode any federal agency’s ability to regulate the industry in order to tackle climate change and even other major issues.

Now, whether the United States will be able to follow through on the climate commitments it has made on the world stage will depend greatly on the actions of individual countries. and the ability of a deeply divided Congress to come together to pass legislation. Biden has pledged to halve the nation’s carbon dioxide emissions from peak levels this decade and achieve a level Carbon-free electricity grid by 2035.

Key questions and EPA

The drama surrounding this issue began in 2015, when the Obama administration took the biggest arguably the United States’ step yet on climate change. At the time, the Environmental Protection Agency tried to set new standards, called the Clean Energy Plan, that would cut greenhouse gas emissions for power plants. Before the plan went into effect, the Trump administration tried to replace it with its weaker bases. A federal court blocked that, too, leaving it up to the Biden administration’s Environmental Protection Agency to try to craft a new rule to deal with climate pollution at power plants. Today’s Supreme Court decision affects how this new rule is formed.

the edge He wrote a primer on the saga surrounding this case earlier this week. But it boils down to whether federal agencies have the power to interpret more ambiguous language in the laws — in this case, invoking the Clean Air Act to push states to turn to clean energy sources — or whether that should be left to Congress to write. These types of measures are in the legislation.

The Supreme Court ultimately decided to leave it to Congress by promoting the so-called “key questions” doctrine. Essentially, he argues that if Congress does not pass legislation detailing how to address an issue of major national importance, the federal agency will not have the freedom to craft regulation based on its own interpretation.

“It confuses federal agencies in cases where they try to regulate things in a way that will have a significant impact on the economy,” says Robert Glicksman, professor of environmental law at George Washington University School of Law. “One of the things this case basically says is that if it hasn’t been done before, it’s potentially illegal, which is a devastating blow to agencies’ ability to act flexibly and proactively to address new and emerging problems.”

Judge Elena Kagan made clear the high stakes in her opposition. “Whatever this court may know, it has no clue how to tackle climate change,” Kagan wrote. However, today the court is blocking the agency’s action authorized by Congress to reduce carbon dioxide emissions for power plants. The court appoints itself – rather than Congress or an expert agency – the decision-maker on climate policy. I can’t think of many more frightening things.”

Since the 1970 Clean Air Act was not written to deal with climate change, and since Congress has not passed legislation to power the grid with clean energy, the EPA has not been left with much choice in its wake. Court decision.

What climate action can the United States take?

However, the agency can still take some action to reduce greenhouse gas pollution — even if those measures aren’t as ambitious as the Obama administration originally wanted. Today’s decision could have been more restrictive, according to Ethan Schenkman, a partner in the environmental practice group at law firm Arnold & Porter who previously served as deputy general counsel for the Environmental Protection Agency during the Obama administration. The Supreme Court has not questioned the EPA’s ability to regulate carbon dioxide as a pollutant under the Clean Air Act, something some environmental advocates fear.

“The EPA totally anticipated this decision,” Shenkman says, and likely already thinking about what it can do to reduce climate pollution for power plants in a way that cannot be interpreted as an attempt to overhaul the country’s entire energy system. refers to a White papers The Environmental Protection Agency introduced last April, which is looking at a raft of technical fixes for power plant pollution. This includes the use of carbon capture technologies that pull greenhouse gases directly from flue emissions.

The agency can require that these technologies be installed on power plants that burn coal or gas. However, this type of technology has drawn sharp criticism from environmentalists who worry that it is further entrenching the nation’s dependence on fossil fuels — which release pollutants other than carbon dioxide that clean energy advocates want to get rid of.

With today’s decision, any hopes of cleaning up the country’s power grid are more dependent on Congress passing legislation to promote clean energy. But there are roadblocks, too.

Democrats have struggled to pass sweeping climate legislation by a slim majority in Congress, which they may soon lose in the midterm elections. West Virginia Senator Joe Manchin has repeatedly thwarted Democrats’ attempts to pass a budget-reconciliation bill that included $555 billion for climate action. The provisions of the climate law have largely focused on efforts to clean up the country’s power grid — which have been watered down over months of negotiations from a plan that would penalize utilities for sticking to fossil fuels to more recent iterations that rely primarily on clean energy tax incentives. .

Even passing these lenient sentences proves to be difficult, but the defenders did not provide Even on the bill yet. Hundreds of billions of dollars in tax incentives could go a long way toward reducing power plant pollution, especially with today’s Supreme Court ruling potentially jeopardizing any further moves federal agencies may take on climate.

Meanwhile, countries are already taking more ambitious steps to phase out fossil fuels. “I’ve seen governors and states over the past several years quickly pass the mandatory 100 percent clean energy standards. And I think you’ll see more and more states doing that,” says Jared Leopold, communications advisor for the nonprofit Evergreen Action.

After all, cleaning up the energy sector is the cornerstone of any strategy to take serious action on climate change. Electricity is responsible for a fourth of carbon dioxide emissions in the United States that are warming the planet. Plans to decarbonize other highly polluting sectors, including transportation and buildings, also rely on a clean grid so that things like electric cars and stoves can run using renewable energy instead of fossil fuels.

So, even if the Supreme Court makes this task more difficult, Leopold says, “It’s not a time for people interested in the planet to step back.” It is time for climate advocates, including the Biden administration, to become more aggressive.

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