The Supreme Court, in a landmark ruling on Thursday, severely limited the Environmental Protection Agency’s options to reduce climate pollution from power plants.
Coal companies, West Virginia and 18 other Republican-led states wanted to prevent EPA from writing a rule that would effectively require more energy from renewables or nuclear instead of coal. Their appeal claimed that a prior lower court ruling went beyond what Congress intended when it enacted the Clean Air Act in 1970 — and the Supreme Court agreed.
This new ruling is an example of preemption at the highest level, as the case, called West Virginia v. Environmental Protection Agency, was on a rule that was never implemented.
How the case got to SCOTUS
In 2015, the Obama administration and the EPA announced the Clean Power Plan, the first major government action to reduce carbon pollution from power plants. When the Trump administration took over, the plan was thrown out and replaced with the Affordable Clean Energy rule, a more lenient rule that did not account for impacts of pollution.
In January 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Trump EPA’s Affordable Clean Energy rule, which contained the repeal of the Clean Power Plan, and directed EPA to write a new rule to regulate greenhouse gas emissions from power plants.
The Biden administration chose not to implement the Clean Power Plan and began developing new regulations for existing power plants. However, Biden did not vacate the previous rule, so the Supreme Court grabbed the D.C. Circuit rule in what one legal expert called an “extraordinary instance of judicial activism.”
In other words, the Supreme Court just prevented the Biden administration from creating any rule.
“Why would the Supreme Court go out of its way to spend the judicial resources needed to resolve a rule that the administration said it won’t implement?” said Michael Vandenbergh, an environmental law professor at Vanderbilt University and former EPA chief of staff. “The other interesting question is why didn’t the administration completely take that rule off the table to prevent the Supreme Court from taking jurisdiction over it.”
A significant ruling for environmental and administrative law
The Supreme Court has previously ruled that EPA has regulatory authority over carbon dioxide and other climate pollution. The new ruling does not fully take away this authority, but it takes a broad mandate out of the question.
The court shifted power to Congress, which has not been able to pass any major climate legislation in the past decade due to polarization, gerrymandering and fossil fuel interests, and to the courts.
Courtesy U.S. Secretary of Defense Supreme Court Justice Elena Kagan dissented on the ruling on Thursday.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Chief Justice John Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”
The court relied on the “major questions doctrine,” a term that has never been used before, which allows judges to strike down regulations that address questions of economic or political significance without authorization from Congress. The ruling suggests that any federal agency that pursues “major” questions could risk a court challenge, and the conservative majority will determine the definition of “major.”
Justice Elena Kagan, writing for the dissenters, said: “The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”
There is some uncertainty with the new ruling, as the Supreme Court did not explicitly define the authority of EPA. And, at this time, it is unknown how the ruling will affect the Tennessee Valley Authority or the future of energy in Tennessee.
Doomism is ‘undercutting our chance to avoid catastrophic climate change’
While the planet heats up, and as the public increasingly understands the role of fossil fuels in the crisis, the coal, oil and gas industry is snatching up the remaining profits. The industry’s lobbyists have preempted local government in Tennessee through its Republican-controlled state legislature, and the Supreme Court just preempted federal climate action.
Since we are losing time to reduce emissions enough to avoid the worst impacts of climate change, and because the big players are handcuffed on climate action, some experts say we may now need Wall Street for any real momentum.
But it could have been worse. Vandenbergh said the decision did not address EPA’s authority across the board – though it very intentionally makes timely solutions harder.
“We are going to solve this problem,” he said. “The opinion today just tells us we’re going to have to solve this problem without the Supreme Court helping us out.”
Vandenbergh also warned that this is not the time for despair.
“If you want to suppress people’s likelihood of acting, one of the best ways to do so is to convince them that their actions won’t have the effects that they want,” he said. “If you hear people spreading doomism, they are undercutting our chance to avoid catastrophic climate change.”
While the impacts on Tennessee energy are unknown, the climate issues in the South are clear, according to Frank Rambo, a senior attorney at the Southern Environmental Law Center.
He said the environment is only as clean as the regulations that protect it.
“Of all regions of the country, the South has the most to lose from unchecked climate change, and the most to gain from an economy that relies on clean energy,” Rambo said in a statement. “The Court’s ruling in favor of coal companies in a case about an environmental safeguard that no longer exists — indeed, one that never took effect — dismisses legal precedent, and ignores the climate crisis that is already hurting families and communities in the South.”
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