The U.S. Supreme Court is due to hear a case on Feb. 28 that could limit the Environmental Protection Agency’s power to curb heat-trapping emissions at a time when time is running out on our ability to limit catastrophic climate change.
West Virginia v. Environmental Protection Agency is a challenge by several states and coal industry interests over how the agency regulates carbon emissions from power plants under the Clean Air Act. If SCOTUS rules in favor of West Virginia, the decision could severely hamper the EPA’s ability to regulate heat-trapping emissions and other forms of toxic pollution. It could also set a precedent in which federal agencies beyond the EPA could be forced to interpret and implement existing laws very narrowly, which would greatly harm the public interest.
It’s surprising that SCOTUS chose to hear the case, because currently the EPA has no regulations to enforce when it comes to reducing emissions from existing power plants. The Obama administration’s 2015 clean energy plan was repealed by the Trump administration and replaced with a weaker rule that many states have successfully challenged and been overturned. The Biden administration’s EPA has yet to replace the rule, so the legal basis for challenging a non-existent regulation is highly questionable and the case should be dismissed.
EPA’s authority and responsibility to regulate heat trapping emissions under the Clean Air Act is clearly established in science and law. This is not what the petitioners are directly challenging. The 2007 Supreme Court decision Massachusetts v. Environmental Protection Agency established that heat trapping emissions are covered by the Clean Air Act, and the EPA’s 2009 Endangerment Finding confirmed that these emissions pose a threat to public health and the environment. Subsequent court decisions have repeatedly confirmed the EPA’s role.
The current case was brought because opponents of climate action are trying to limit the scope of how the EPA regulates polluters in the future. A finding in favor of the petitioners could have implications far beyond the electricity sector, undermining the EPA’s authority in climate change mitigation and broader public health protection. In this particular case, the petitioners want to limit the EPA’s authority to narrow changes at a power plant and exclude options for power system-wide changes that would help cut emissions more deeply and more cheaply. carbon dioxide. Limiting the scope of options also means states would have less flexibility to meet pollution standards; for example, they might not be able to allow electricity generators to switch from fossil fuels to renewable electricity sources as a way to meet an electricity sector carbon standard.
As part of its contribution to global climate action, the United States has set a goal to reduce emissions 50-52 percent below 2005 levels by 2030. To help achieve this goal, the EPA must be able to rigorously implement the Clean Air Act, an existing law. legislation with bipartisan support that has successfully reduced the environmental and health effects of air pollution. Along with much-needed new climate policies Congress should pass, EPA regulations are needed to reduce carbon dioxide emissions from the energy, transportation, and other industrial sectors, as well as methane emissions. , which largely come from the oil and gas sector.
A ruling against the EPA could also limit its ability to consider the latest climate science data when making decisions about tightening future standards. The latest data describing climate change are all the more clear, their scientific interpretation more disastrous, as underlined by an amicus brief filed by a number of eminent climatologists. Numerous scientific studies and assessments and observable evidence claim that climate impacts are already taking place in deadly and costly ways and that heat waves, wildfires, floods, extreme rainfall, drought, ocean acidification , sea level rise and more will get much worse if we fail to take action. The science is clear that global heat-trapping emissions must be sharply reduced in this decade to avoid far more catastrophic consequences, including irreversible tipping points such as massive ice sheet loss triggering sea level rise. of the sea over several centuries.
The “science of attribution,” which links climate change to extreme weather events, has also grown much stronger. Recent research shows, for example, that the deadly heat wave in the Pacific Northwest last summer would have been virtually impossible without climate change. And the combined climate impacts can lead to serious human consequences such as water shortages, food insecurity and the displacement of large populations. The data also shows that low-income communities and communities of color bear a disproportionate and unfair burden of pollution, as well as the impacts of the climate crisis. Rather than crippling the EPA, we actually need it to go much faster.
Beyond climate change, a ruling against the EPA would make the agency less flexible and less efficient in responding to new pollutants or toxic chemicals. In general, the Supreme Court has generally shown deference to federal agencies in the way they interpret protective laws such as the Clean Air Act and the Toxic Substances Control Act. Indeed, Congress drafted these laws broadly to give the agencies forward-looking authority. Congress recognized that it could never fully anticipate new forms of harmful or toxic pollution that might appear in the future, or new public health hazards, or innovative pollution control technologies that might emerge. If the EPA had to go back and wait for Congress to act every time a new air or water pollutant was created by industry, or new scientific evidence of the harmful effects of existing pollutants emerged , the process of updating health standards would be untenable and tedious. slow. In seeking to limit the authority that Congress has wisely granted to the agencies, the petitioners in this case have one overarching goal: to tip the scales in favor of the polluters.
Unfortunately, given the current composition of the Supreme Court, it is unclear whether it will maintain the existing authority of the EPA as envisioned by Congress. Its recent ruling overturning a federal COVID-19 vaccination mandate for large corporations found a court unwilling to uphold the Occupational Safety and Health Administration’s authority to issue scientific advice, despite clear evidence of its vital value in the midst of a global pandemic.
This reality makes the dysfunctional partisan politics that permeates Congress today all the more troubling and infuriating. With the Build Back Better Act stalled in Congress and this latest disturbing development on the legal front, anyone feeling the urgency of this consequential decade for climate action should be deeply concerned. The solutions are within reach – and yet they have repeatedly eluded us due to the outsized power of the fossil fuel industry and its allies, and their well-funded assaults on political progress.
So many things are at stake, including the future we leave to our children and grandchildren; let’s hope the Supreme Court finds its way to being on the right side of history in deciding this consequential case.