CarbonClean captures carbon dioxide emitted from coal-powered boilers.
(Photo: iStock)
In a highly anticipated but not unexpected 6-3 decision, the Supreme Court ruled on 30 June 2022 that the Barack Obama administration’s Clean Power Plan exceeded the United States Environmental Protection Agency’s (EPA) authority under the Clean Air Act.
The Clean Power Plan, the policy at the heart of the ruling, never took effect because the court blocked it in 2016, and the EPA now plans to develop a new policy instead.
Nonetheless, the court went out of its way to strike it down in this case and reject the agency’s interpretation of what the Clean Air Act permitted.
Having said what the EPA cannot do, the court gave no guidance on what the agency can do about this urgent problem. Beyond climate policy, the ruling poses serious questions about how the court will view other regulatory programmes.
President Joe Biden at Leaders Summit on Climate.
The Clean Power Plan would have set targets for each state to reduce carbon dioxide emissions from electric power plants. Utilities could meet these targets by improving efficiency at existing coal-fired power plants and by “generation shifting” – producing more power from natural gas and renewable sources like wind and solar.
Chief Justice John Roberts framed the issue as a “major question,” a doctrine that the court has invoked in only a handful of cases. It holds that agencies may not regulate on questions of “vast economic or political significance” without clear directions from Congress.
The ruling held that this had never been part of the agency’s mission, no law gave the FDA clear authority over tobacco, and Congress had not directed the FDA to take such action.
The major question doctrine builds on a more established but increasingly disfavoured principle of administrative law, Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute.
In my view, however, the Supreme Court is using the major question doctrine to take on authority to decide what Congress meant, without regard to the agency’s expert views or policy judgments.
In one sense, the majority opinion is fairly narrow. As Roberts writes: “[T]he only interpretive question before us, and the only one we answer, is … whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority” of section 111 (d) of the Clean Air Act.
The majority’s answer was no.
Essentially, the majority found that the EPA had proposed a sweeping national makeover of the electric power industry.
Although West Virginia and the others who sued argued that the EPA had no authority to regulate emissions “beyond the fenceline” of individual plants, the Court did not constrain the agency that tightly.
Roberts also noted that the EPA’s authority was not limited to plant-specific technological controls. This suggests that the court is leaving the door open for some regulation beyond the fenceline.
What can the EPA do now? Its options appear limited. The agency can require existing coal-fired plants to operate more efficiently, but that would extend the plants’ useful lives, with negative effects on nearby communities from pollutants that the plants emit.
But the costs, especially for retrofitting existing plants, are prohibitive, and utilities would surely challenge the technology as not “adequately demonstrated,” as required by section 111 (d).
Another option would be to require retrofitting coal plants to allow co-firing with natural gas – burning a mix of these fuels, as some plants already do.
Market conditions are shifting electricity production away from coal and toward cleaner, more cost-effective sources like wind and solar.
But this transition is not moving as quickly as climate science suggests is necessary to avoid catastrophic impacts from warming.
Over the past decade, coal use fell quickly as natural gas and renewable energy use expanded. Coal's increase in 2021 was due to high natural gas prices and a rise in power demand, and it helped drive an increase in greenhouse gas emissions.
Chart depicting changes in US electricity sources since 1950.
Beyond climate policy, I expect this ruling to affect how the EPA and other regulatory agencies interpret laws that have been on the books for many years.
For example, the Securities and Exchange Commission recently proposed a new rule to require publicly traded companies to provide more robust disclosure of the financial risks that climate change poses to their balance sheets.
In my view, it is clear that the US has entered a new era of administrative law, with an activist court asserting its power to curtail what it perceives as the excesses of regulatory agencies – and not always waiting for those agencies to complete their work.
(This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. This article was originally published on The Conversation. Read the original article here.)
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