Opportunities For Climate Action After SCOTUS's EPA Ruling
The SCOTUS ruling on the landmark case West Virginia v. EPA wounded the agency’s (and federal government’s) ability to regulate emissions through regulatory measures. Still, the outcome could have been much, much worse because the case pertained to only one section of the Clean Air Act rather than the law in its entirety, which means the EPA can still use other tools to drive emissions cuts.
The section of the act, which asserts that the agency has the power to dictate the “best system of emission reduction” for power plants, has been called into question before. In fact, it’s been a major point of contention since Obama’s halted Clean Power Plan until now, as it gives the EPA the ability to mandate “generation shifting,” or require power plants to cut emissions by shifting from fossil fuels to clean energy sources.
Why This Matters
The recent ruling limiting the EPA’s ability to regulate is just one in a series of landmark decisions issued this session by the conservative-majority Supreme Court. Using the “major questions” doctrine (which is neither a statute nor in the Constitution), which claims that only Congress should be authorized to decide on “issues of magnitude.”
Further, by SCOTUS limiting the EPA’s ability to regulate climate change, the agency must be all the more resourceful in its approach. So regulations are still possible, but they will lack economic efficiency. As Robinson Meyer, a writer for the The Atlantic, put it: “will prove both cumbersome and more expensive for almost everyone involved.”
MSNBC: Politicized Supreme Court Guts Clean Air Act; Environmental Activists Hope For Backlash, July 1, 2022.
MSNBC: The Future Of America With A Conservative Supreme Court, July 3, 2022.
PBS: What the Supreme Court’s monumental rulings tell us about the new conservative majority, July 4, 2022.
Room For Action
It remains uncertain exactly how far into the act the decision will reach, having used the “major questions” doctrine and deferring power to the legislative branch. Additionally, the ruling did not overturn Section 111, which means the EPA is still authorized to set requirements for power plants under the Clean Air Act -- perhaps not to cut emissions, but the agency could mandate the use of carbon capture and storage. They can also still regulate methane emissions at any scale, along with carbon emissions in the transportation sector.
States, too, have an opportunity to step up when it comes to climate. According to a new report from RMI, the country’s front-runners when it comes to climate (California, Colorado, Illinois, New Jersey, New York, and Washington) are still not on track to cut emissions in half by 2030.
Even at the executive level, there are significant opportunities for action. President Biden could continue to invoke the Defense Production Act, pushing for further development in renewable energy manufacturing while curbing the construction of new fossil fuel infrastructure in order to drive market transformation without Congressional approval.
PBS: War on the EPA (full documentary), May 25, 2021.