Supreme Court jeopardizes federal climate action

Today, in ruling on a nonexistent plan with nonexistent harm to the people filing the lawsuit, the Supreme Court took the opportunity to curb the Environmental Protection Agency’s ability to regulate the energy sector’s carbon emissions. .

In a summer of major U.S. Supreme Court decisions, West Virginia v. Environmental Protection Agency was one of the weirder cases on the roll. On the one hand, it was a dispute that did not really exist. The complaint was about the Clean Power Plan, a set of rules enacted by the EPA in 2015 that would have prompted power plants to significantly reduce carbon emissions by 2030. Only the plan never worked. Concerned about its potential economic effects, fossil fuel executives and Republican officials went to court and quickly had the rules suspended. A year later, then-President Barack Obama handed Donald Trump the keys to the EPA, and the plan was gone for good.

So environmental advocates were shocked and concerned when the Supreme Court decided to challenge the plan that meandered through the courts. Those fears were not unfounded. Chief Justice John Roberts, writing for the conservative majority of six justices, said the consequences of such a policy were too great to be implemented without more explicit Congressional approval.

That rationale doesn’t undermine the EPA as much as some environmental advocates feared. The decision will still allow the agency to regulate emissions from power plants, albeit more strictly than before. And the court did not take the opportunity to overturn the precedent that says agencies like the EPA can tackle carbon emissions in general. But the decision remains a serious blow, highlighting the court’s skepticism about ambitious action by federal agencies and offering a potential roadmap for future legal challenges to climate policy. “They’re saying, ‘We’re loading the gun today, but we’re not going to point it at anything else yet,'” said Jay Austin, a senior attorney at the Environmental Law Institute, a nonprofit legal group.

“The Court appoints itself — rather than Congress or the expert bureau — the decision-maker on climate policy,” Judge Elena Kagan wrote in her dissent, who was joined by the two other liberal justices. “I can’t think of many things more terrifying.”

The dispute, brought by a group of Red State Attorneys General, hinged on part of the Clean Air Act that allowed the agency to institute the “best emissions reduction system” at power plants. The question before the Court was one of scope. Perhaps by the “best system” congress meant that the EPA could require emission control technology at specific power plants, as with other pollutants. Or perhaps it was a broader mandate, allowing for measures that could cause a coal-fired power plant to shut down in favor of producing cleaner energy elsewhere. With the Clean Power Plan, the EPA opted for a more far-reaching interpretation.

But that disagreement pointed to an even bigger legal question: What can government bureaucrats do with the often vague instructions Congress gives them? Traditionally, there’s a way things go in Washington: Elected officials can’t be expected to scribble through every detail of every policy, and they wouldn’t want to. So that becomes the job of people at regulatory agencies who take the outlined laws and put them into action. Judges usually don’t like to get in the way. Under a doctrine known as “Chevron reverence,” referring to a 1984 Supreme Court ruling involving the oil company, the judges have repeatedly said it’s best to let the scientists and policy experts do their job.

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