September 26, 2022

Supreme Court handcuffs Biden’s climate efforts

The Environmental Protection Agency has only limited authority to regulate greenhouse gases from power plants, the Supreme Court ruled Thursday in a decision that deals yet another blow to President Joe Biden’s efforts to fight climate change.

The 6-3 ruling that explicitly applied the court’s “major questions” doctrine erects a major obstacle to Biden’s hopes of addressing global warming through executive branch action — barely six months after a Senate stalemate shut down congressional Democrats’ efforts to pass their biggest-ever climate bill. 

It also comes amid accumulating warnings from scientists that human-caused climate change is increasing the likelihood of more severe floods, droughts, storms and other calamities in the coming decades, with dwindling years left to head off the worst of the peril.

The high court’s use of the major questions doctrine — a term the majority used for the first time in this ruling — could also spell trouble for other agencies seeking to use existing authorities to regulate in new ways or address emerging issues.

Background: The case arose from a 2021 decision in which the D.C. Circuit Court of Appeals said the Trump-era EPA had incorrectly interpreted the Clean Air Act as limiting the kinds of technologies and strategies the agency could consider to lessen carbon pollution from power plants.

President Donald Trump’s regulators had said such technologies could be applied only at the plants themselves. In contrast, the Obama administration had enacted a power plant rule aimed at achieving an industry-wide shift away from electricity generation based on fossil fuels.

The Trump EPA interpretation “hinged on a fundamental misconstruction” of the law, the D.C. Circuit ruled.

Though the Biden administration planned to write a new rule, West Virginia and other Republican-controlled states, along with two coal companies, asked the high court to step in early and place restrictions on EPA’s authority to prevent any type of sweeping regulation like the Obama-era plan.

The ruling: The Obama administration’s view of EPA’s authority under the Clean Power Plan was “unprecedented” and fundamentally revised the statute, Chief Justice John Roberts wrote, joined by the five other conservative justices.

“Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater of Section 111(d),” he wrote.

While EPA cannot go as far as to require an emissions trading scheme like under the Clean Power Plan, Roberts wrote that the court was not deciding whether the law “whether the statutory phrase ‘system of emission reduction’ refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER.”

What’s next: The Supreme Court’s ruling will not halt EPA’s ongoing work to craft a third version of the rule, but it will limit the agency’s options. The final regulation is all but guaranteed to face legal challenges — including from climate activists if they believe it is too lax.

Before the high court’s ruling, EPA Administrator Michael Regan had indicated he is looking to craft a rule that can survive additional Supreme Court scrutiny — potentially focusing on “inside the fence line” strategies focused on individual plants. A proposal is expected by the end of the year.

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