This post originally appeared in Scientific American.
The Supreme Court’s decision in the case known as West Virginia et al. v. Environmental Protection Agency et al. is a serious blow to the EPA’s ability to fight climate change—and could have dangerous repercussions beyond this case. The timing of the decision feels especially harsh, as the nation is in the throes of the “Danger Season” for hazards such as heat waves, drought, wildfires and hurricanes, all worsened by climate change.
The majority 6–3 decision sharply curtails the EPA’s authority to set standards based on a broad range of flexible options to cut carbon emissions from the power sector—options such as replacing polluting fossil fuels with cheap and widely available wind and solar power coupled with battery storage. Instead, the Court has ruled that, though the agency can still regulate carbon emissions, it must do so narrowly and set standards solely based on options available at individual power plant facilities, such as efficiency measures to improve plant-level heat rates.
This decision wrongfully precludes the agency’s authority to set robust power plant carbon pollution standards in line with today’s technologies and practices adopted on a sector-wide basis. In fact, utilities are increasingly turning to these options—although not fast enough—and many had weighed in in support of EPA power plant carbon standards. The limited approach permitted by the court ruling will constrain the ability to drive the major cuts in emissions that are necessary to meet climate goals. Had the court ruled fully in favor of the EPA—or not taken the case at all—a much more meaningful dent in power plant carbon emissions would be within reach, while also delivering much greater reductions in other dangerous co-pollutants from burning fossil fuels such as particulate matter, mercury, nitrogen oxides and sulfur dioxide.
The petitioners who brought this case include state-level political officials and coal companies who are single-mindedly determined to block climate action and perpetuate fossil fuel dependence to serve their narrow political or business interests. And as I wrote previously, there are strong grounds to argue that this case should never have been taken up by the Supreme Court in the first place because there is no rule on the books to challenge. Given the expressed deep skepticism of this Court’s majority for the authority and expertise of federal agencies, today’s decision is not surprising but it is deeply troubling nevertheless.
After years of setbacks and delays to implementing EPA power plant carbon standards, and at a time when the climate crisis is so clearly unfolding all around us, this decision flies in the face of the urgent need for deep cuts in heat-trapping emissions to protect public health and the environment. Power plants are the second-largest source of U.S. carbon emissions today. Decarbonizing the power sector is also a linchpin of economy-wide efforts to cut emissions, through electrification of energy use for transportation, industrial purposes and in residential and commercial buildings. While clean energy progress is definitely underway, it is not happening fast enough or on the scale necessary to limit the threat from climate change.
The West Virginia v. EPA decision is also harmful in a broader sense because it goes to the heart of federal agencies’ abilities to interpret existing laws based on the best available science, and to then set robust standards accordingly. Once Congress passes protective laws like the Clean Air Act, agencies have generally had deference to implement those laws based on the latest scientific evidence of harms caused by pollutants and options to limit those harms. With this decision, the Court has instead hamstrung that authority. This deeply concerning precedent could potentially put other important environmental and public health policies at risk too. This development has come about as part of a decades-long well-funded and coordinated strategy by industry interests and their political allies aimed at protecting polluters and undermining public health safeguards.
The Supreme Court’s decision is out of step with legal precedent because prior court rulings have given deference to agency expertise in interpreting and implementing laws passed by Congress. It is also contrary to what the latest science shows is necessary and does not reflect the full potential to reduce heat-trapping emissions from the power sector using widely available and cost-effective technologies. As Justice Elena Kagan notes in the dissenting opinion, “Whatever else this Court may know about, it does not have a clue about how to address climate change…. 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.”
Despite this deeply harmful and ideologically motivated ruling, the EPA’s authority and responsibility to curtail heat-trapping emissions still stands. The EPA must now act promptly to propose and finalize as robust a set of power plant carbon standards as possible within the scope it has.
Congress, too, must act quickly to pass the months-long stalled budget reconciliation bill—with critical climate and energy components. That legislation must include tax credits to help advance renewable energy and electric vehicles; investments that will help communities become more resilient to climate change, especially low-income communities and communities of color that bear a disproportionate brunt of impacts; and strong labor and environmental justice provisions. Companies must also step up and do their part—net zero pledges on distant timelines mean little without concrete actions to make deep, absolute near-term cuts in emissions. The country needs a strong suite of policies at the federal, state and local level, across every sector of the economy, to deliver on its commitment to cut its heat-trapping emissions 50 to 52 percent below 2005 levels by 2030. Every hindrance, every delay, is deeply problematic given the urgency highlighted by the latest science.
With this decision, this Supreme Court has willfully made it much more difficult to make meaningful progress on climate change. Meanwhile global carbon emissions continue to rise at an alarming rate, sharply rebounding from the brief dip during the first year of the COVID-19 pandemic. Atmospheric concentrations of heat-trapping emissions are on a relentless upward trajectory, as is the increase in global average temperatures. There is no time to waste. As the Intergovernmental Panel on Climate Change stated in its recent report, “Any further delay in concerted anticipatory global action on adaptation and mitigation will miss a brief and rapidly closing window of opportunity to secure a livable and sustainable future for all.”
Unlike the Court’s ultraconservative majority, most people in the U.S. recognize the harm being wrought by climate change and want strong policies to address it. This decision is a warning that going forward, securing desperately needed progress on urgent priorities such as climate change will require an engaged and informed electorate and the protection of elections and voting rights. Rooting out the fossil fuel industry’s corrupting influence on our democracy is also vital. We must hold our policy makers’ feet to the fire and be willing to speak up in every venue—from corporate shareholder meetings to public utility commission hearings—where decisions about the future of our planet are being made.