Supreme Court Kneecaps Federal Government’s Ability to Fight Climate Change

The Supreme Court severely limited the federal government’s ability to coordinate and regulate widespread reductions in greenhouse gas emissions on Wednesday in a landmark court ruling that will make achieving any meaningful emissions targets even more difficult. Essentially, the court ruled that Congress needs to enact legislation to specifically regulate greenhouse gas emissions, something unlikely to happen given the Republican party’s fundamental opposition to climate change mitigations. 

The Court ruled that the Environmental Protection Agency cannot regulate greenhouse gas emissions without the expressed approval of Congress, something the Court decided does not exist within the Clean Air Act. “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,’” Chief Justice John Roberts wrote in the majority opinion. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). 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 landmark ruling comes for a case that many environmental law experts Motherboard talked to believe the court never should have heard. It pertains to an Obama–era Environmental Protection Agency rule intended to reduce greenhouse gas emissions from power plants called the Clean Power Plan. The peculiar thing about this case is the Clean Power Plan is not in effect, was never actually implemented, and the market independently achieved the proposed benchmarks on its own thanks to plummeting renewable energy costs and state-level regulations.

In taking the case, the Supreme Court agreed to hear a grievance from plaintiffs—none of whom, it bears mentioning, are the actual power plants to be regulated by the Clean Power Plan, but rather coal companies and various Republican-dominated states—despite them having no harm to actually point to from the Clean Power Plan. Climate activists and progressive lawyers have largely feared the worst, as the broad assumption was the court never would have taken the case if not for the expressed intent of gutting the federal government’s ability to fight climate change. 

Like all important cases elevated to the Supreme Court, West Virginia v EPA was simultaneously about a narrow legal question and an incredibly broad and massively important societal question. The narrow question, in addition to the question of whether the Supreme Court should be hearing the case at all, has to do with the “fenceline” issue. This is about whether the EPA can implement rules and regulations that affect multiple industries, such as emissions from power generation. The plaintiffs such as the state of West Virginia argued they cannot, and the EPA’s jurisdiction is limited to within the power plant’s “fenceline,” so to speak, and methods to limit emissions the power plant implements on its own property such as increased efficiency in the way it burns coal or sequestering the carbon it emits, a process that is highly controversial and thus far largely ineffective. In the Clean Power Plan, the EPA proposed three carbon-reducing strategies states should plan for, including more renewable energy use across the state and using natural gas plants more to retire coal plants. In the ruling, the Court effectively said the EPA can’t mandate any of this to limit greenhouse cases.

The broader societal question was the grounds under which the federal government can implement rules and regulations at all. Since the court took the case, there have been broad concerns the newly-emboldened conservative majority would use this opportunity to gut what it perceives as an overly burdensome regulatory state that is empowered to enact regulations through the rulemaking process, a core element for how the federal government has gotten anything done for the last several decades as Congress became more and more dysfunctional. The worst case scenario envisioned by legal scholars has been that the court would essentially bar federal agencies from doing that and make Congress pass laws to do those things instead. It will take legal scholars time to figure out how broad this ruling truly is, but from a climate change perspective, the Supreme Court just made progress that much harder.

In her dissent, Justice Elena Kagan wrote, “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.”