The Supreme Court of the U.S. (SCOTUS) ruled before their session closed that the Environmental Protection Agency (EPA) exceeded its authority to regulate carbon emissions from power plants to combat climate change.
By a 6-3 vote, the court ruled in West Virginia v. EPA the Clean Air Act does not give EPA authority to regulate power plant emissions under the major questions doctrine, which states “decisions of vast economic and political significance” cannot be assigned to an agency without congressional intent.
Writing for the majority, Chief Justice John Roberts declared the language of the Clean Air Act “did not clearly authorize the EPA to engage in a ‘generation-shifting approach’ to the production of energy in this country.”
The court pointed out that since the passage of the Clean Air Act 50 years ago, the EPA has exercised its authority to regulate power plants by setting standards for the “best system of emission reduction,” causing plants to operate in a cleaner way.
Roberts wrote the question before the court was “whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no.”
Justice Elena Kagan wrote in dissent that the court “does not have a clue about how to address climate change,” yet the court “appoints itself, instead of Congress or the expert agency— the decision-maker on climate policy.” Kagan said the Clean Air Act uses broad language in anticipation of the EPA having to deal with large, new problems and topics such as climate change.
President Joe Biden issued a statement after the ruling, stating it’s “another devastating decision that aims to take our country backwards.”
Biden said his administration is working with the Department of Justice and other agencies to find ways to protect Americans from harmful pollution, “including pollution that causes climate change.” The administration will also work with states and Congress to “pass and uphold laws that protect their citizens.”
EPA administrator Michael Regan, speaking to PBS NewsHour, said the decision was frustrating and constrains what the agency does. Regan continued the constraints are “on how we can provide the rules of the road for long-term investments by the power sector.”
He also said the decision restricts investments by power companies into innovation and technology. Regan said that the agency will use every “tool in our toolbox” to reduce pollution that drives climate change. While the SCOTUS decision impedes the agency’s progress, it does not prevent it from continuing to make progress, he said.
Jason Rylander, an attorney at the Center for Biological Diversity’s (CBD) Climate Law Institute, said in a statement, “It’s a bad decision and an unnecessary one, but the EPA can still limit greenhouse gases at the source under Section 111 and more broadly through other Clean Air Act provisions. In the wake of this ruling, EPA must use its remaining authority to the fullest.”
According to CBD, that authority could be a nationwide greenhouse gas pollution cap.
David Doniger, senior strategic director of the National Resources Defense Council’s Climate and Clean Energy Program, said the major questions doctrine could “turn into a huge roadblock to action by the EPA under the Clean Air Act and could affect other laws that Americans count on to control air and water pollution.”
The decision by the court has implications for regulations relating to climate change where Congress has not given “sweeping and consequential authority.”
For instance, the Securities and Exchange Commission (SEC) has proposed a rule requiring companies offering securities to disclose climate change risks and greenhouse gas emissions. Critics, including the American Farm Bureau Federation and other agricultural groups, have argued the proposed rules exceed SEC’s authority to decide issues of significant economic and political significance without clear congressional authority.
The Federal Energy Regulatory Commission (FERC) may face similar challenges on the major questions doctrine after the agency drafted policies “aimed at treating greenhouse gas emissions and their contribution to climate change the same as all other environmental impacts (FERC) considers.” — Charles Wallace, WLJ editor
