Outside the Box: The Supreme Court weakened the EPA’s power to fight climate change — but demand for clean energy is going strong

In 2021, more than 40% of Americans lived in a county that was hit by extreme weather connected to climate change, according to a Washington Post analysis of federal disaster declarations. Without immediate action to reduce global carbon emissions, we face an even more dire future.

As the world’s second-largest contributor to global warming, the U.S. must take a leading role in reducing emissions. The recent U.S. Supreme Court ruling in West Virginia v. Environmental Protection Agency will make leadership more difficult, by limiting the EPA’s authority to regulate pollution from coal, oil and gas plants. While the Court did not strip the EPA of even more authority,  as many experts feared, the ruling creates an obstacle to immediately reduce global warming emissions from carbon-spewing power plants.

Power plants are the second-largest source of greenhouse gas emissions in the U.S. The Court’s decision in West Virginia v. EPA barred the EPA from reinstating the so-called Clean Power Plan, announced by former President Barack Obama in August 2015, that set the first-ever enforceable limits on carbon pollution from U.S. power plants, starting in 2022.  Yet the 6-3 decision on June 30 left intact a 2007 Supreme Courtruling that the EPA could regulate carbon pollution and other greenhouse gasses. 

Obama’s clean power rules never took effect after fossil fuel-producing states sued the EPA and the Supreme Court delayed implementation. Before that case was resolved, then-President Donald Trump’s administration scrapped the Clean Power Plan entirely and in 2019 replaced it with the Affordable Clean Energy (ACE) rule. ACE was purportedly designed to reduce emissions, but actually created incentives to burn more fossil fuels.  In 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Trump administration’s rule and sent both ACE and the Clean Power Plan back to the EPA for further consideration.

As a result, when President Joe Biden took office, the EPA had no operative rules regulating carbon pollution from power plants under the landmark 1970 Clean Air Act. The 2021 Court of Appeals ruling permitted the EPA to reinstate the Clean Power Plan or make new rules. Biden expressed intentions to enact new rules on power plant emissions, but had not implemented any before the Supreme Court’s latest ruling.

In the majority opinion in West Virginia v. EPA, penned by Chief Justice John Roberts, the Court sided with the plaintiffs and against the EPA, holding that Congress did not give the EPA authority to implement system-wide carbon emissions caps on power plants (like the Clean Power Plan, and, presumably, what the Biden EPA was planning to do). In the opinion, Roberts cited the “major questions doctrine,” which is a legal idea that, depending on how it continues to be applied, could threaten the ability of the EPA and other administrative agencies to enact regulations unless explicitly directed to do so by Congress.

Following the ruling, there is no question that the agency’s tools to address climate emissions from power plants are significantly more restricted. But there are potential legislative solutions — and other fixes are happening on their own.

For instance, Congress could strengthen the EPA by amending the Clean Air Act to more explicitly give the EPA authority to regulate power plant emissions. More broadly, the Court’s ruling should increase pressure on Congress to pass comprehensive climate legislation that would lower emissions across all sectors of the economy.

Yet given the scope and consequences of climate change, coupled with the new constraints, the EPA can and should swiftly adjust its strategy to be most effective in the near term. Whether this means ramping up enforcement actions or developing a new regulatory scheme that would be permissible under the new ruling, work should begin immediately.

Clean power is cost-effective

Moreover, even without the Clean Power Plan, progress is being made. Many of the dirtiest power plants running on coal, which the Clean Power Plan was designed to tackle, are closing anyway. In fact, despite the fact that it was never implemented, as a nation, the U.S. has exceeded the targets set by the Clean Power Plan a decade early. As clean energy becomes more cost-effective, and state and local governments enact ambitious climate policies, running dirty power plants makes less and less sense. 

The transition to clean energy is happening, and we can and must speed it up with good policy. The EPA lost one effective tool as a result of the Court ruling, but hope is not lost. The EPA and Congress still have work to do, and Americans concerned about the future of our planet should lean in and support the great work happening in state capitols and town halls across the country.

Matt Casale is the environment campaigns director at public-interest advocate U.S. PIRG.

Also read: Coal is on its way out, despite Supreme Court EPA ruling. Utility stocks look like a buy.

More: Severe heat: 5 electricity blackout risks facing the entire U.S., not just Texas

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