West Virginia vs EPA: US Supreme Court defies climate sense

Using the Law

18 Jul

Written By William Wilson

On 30 June 2022, the conservative majority in the U.S. Supreme Court drastically curtailed the ability and powers of the Federal Environmental Protection Agency ‘E.P.A.’ to regulate the greenhouse gas emissions of power plants under the Clean Air Act, saying in effect that Congress cannot have intended that powers under that Act be used to work out far-reaching plans that would impact the whole industry of coal-fired power generation.

As the New Yorker commented:

“The Supreme Court tries to overrule the climate”.

The case West Virginia v Environmental Protection Agency was brought by the coal-producing state of West Virginia, with the support of several major coal companies. The case re-examines the scope of the powers of the EPA to regulate greenhouse gas emissions from power plants that contribute to climate change.

The case concerns whether the EPA can only regulate the narrow scope of what happens ‘within the fence’ of a power plant, or whether it can more widely draft regulations in such a way as to encourage or require the energy transition (or as the Court put it “generation shifting”) from coal-fired power towards gas and renewables.

President Obama’s EPA proposed a Clean Power Plan taking the wider view of the agency’s powers. President Trump’s EPA went back on the Clean Power Plan and replaced it with the Affordable Clean Energy Rule, which was limited in scope to concern only equipment and technology within power plants. This in turn was challenged by Democratic states and environmental groups, and President Biden’s EPA currently has neither rule in place but is formulating a third, which it has not yet issued.

That makes the legal challenge unusual, and arguably premature. Even the fact that the EPA does not currently have in place a plan or rule that could be the subject of a direct challenge did not, despite the arguments of the Biden administration, prevent the Court from re-setting the boundaries to a Federal agency’s actions.

In an earlier case, Massachusetts v EPA, (2007) the Supreme Court determined that the EPA did have powers under the Clean Air Act to regulate the greenhouse gas CO2 as a pollutant. The Court declared then that:

“The harms associated with climate change are serious and well recognized. The Government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events. “

Climate change has only become more obviously serious since then. The Supreme Court also used to exercise a form of ‘deference’ to the technical expertise within Federal agencies under the doctrine set out in the Chevron case, unless there were ‘major questions’ of such economic and political importance that they required to be addressed by Congress. In the present case, West Virginia argued for a drastic curtailment of the EPA’s powers, and a much wider application of the ‘major questions’ doctrine.

The EPA and many environmental lawyers know that if the category of ‘major questions’ is widened, and more and more issues can only be decided by Congress, then in practice they may not get decided at all. As if to make the point, Senator Joe Manchin, also of West Virginia, has recently blocked the Biden administration’s latest climate legislation.

Radically different views of the Constitution and how to interpret it were on display in the conservative majority and liberal dissenting judgements from the Court, as was a certain amount of scorn for the competing arguments. These are some extracts that give a flavour of debates within the Supreme Court.

Chief Justice John Roberts, for the majority:

“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.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d) [of the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. “

Justice Neil Gorsuch, concurring:

“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur. “

Justice Elena Kagan, dissenting:

“So add to the oddity of the Court’s declaring a defunct regulation unlawful ... the irregularity of its suggesting some kind of non-technological limit that no one (not EPA, not the parties, not the court below) has ever considered. More important here, both the nature and the statutory basis of that limit are left a mystery. If the majority is not distinguishing between technological controls and all others, what is it doing—and how far does its opinion constrain EPA? The majority makes no effort to say. And because that is so, the majority cannot even attempt to ground its limit in the statutory language...

... It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time...

... Courts should be modest.

Today, the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the “best system of emission reduction” for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.

The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself— instead of Congress or the expert agency— the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.”

President Biden did not underestimate the impact of the judgement, describing it as –

“another devastating decision that aims to take our country backwards. While this decision risks damaging our nation’s ability to keep our air clean and combat climate change, I will not relent in using my lawful authorities to protect public health and tackle the climate crisis.”

Johanna Chao Kreilick, president of the Union of Concerned Scientists (UCS) said -

“Today’s decision simultaneously acknowledges EPA’s authority to regulate carbon emissions from power plants and severely undermines its ability to do so. This troubling ruling results in a challenging contradiction. The very agency that the court has recognized is tasked with the obligation to act has been significantly curtailed in so doing. It defies logic and defies common sense. And all the while communities are left in the lurch, clear-eyed on the escalating impacts that worsening climate change brings yet forced to stand by while a critical tool for driving necessary emissions reductions is hamstrung.”

Climate change is contributing to the disappearance of a million species, threatening the existence of small island states and coastal cities, causing extreme weather events, rendering parts of the globe uninhabitable, risking hundreds of millions of people being subjected to poverty and forced relocation, and approaching irreversible tipping points.

The messages of climate science are perfectly clear, and the IPCC’s latest reports have been endorsed by 195 of the world’s governments, who nevertheless need to be constantly reminded that what they do matters more than what they say.

To learn more about the science of climate change see our series of blogs in the links below:

Climate Science - What does the Future Hold for our Climate?

Climate change was not a big problem in the Eighteenth Century when the U.S. Constitution was drawn up. Yet every day of the week in which the Supreme Court delivered its judgement, levels of atmospheric CO2 at the Mauna Loa Observatory exceeded 420 parts per million. The National Oceanic and Oceanographic Administration pointed out, once again, that the last time in world history that CO2 was at these levels was in the Pliocene, 4.1 to 4.5 million years ago, when sea levels were between 5 and 25 metres higher than today, “high enough to drown many of the world’s largest modern cities”.