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As with some of its other rulings this session, the Supreme Court’s 6-3 decision late last month to pare back the authority of the Environmental Protection Agency to regulate emissions from power plants reads like an academic treatise devoid of the context of the reality of climate change and its consequences.
At issue is the agency’s authority to write rules for power plant emissions. The court’s conservative majority held that EPA had overstepped its authority in requiring power plants to reduce greenhouse gas emissions by switching from coal to cleaner sources of electricity, such as solar and wind.
The heart of the question is whether Congress, which hasn’t made much progress in addressing major problems like climate change in years, has given agencies like the EPA sufficient authority to begin to tackle these problems on their own. The court’s conservatives ruled that Congress had not.
The six conservative justices relied on what is called the “major questions doctrine.” Under the majority’s interpretation of this doctrine, which it articulated by name for the first time in this decision, Congress must explicitly detail an agency’s ability to act on such major questions.
Specifically, Section 111 of the Clean Air Act instructed the EPA to determine “the best system of emission reduction” for a wide variety of industries, including power plants. The court’s majority said this language was insufficient grounds for the specific rules that the EPA wrote and implemented for power plants because, the majority opinion said, Congress had not explicitly directed the agency to mandate “generation switching.”
If this sounds arcane and mired in minutia, it is. But, it comes in the midst of a worsening crisis and temperatures around the world are rising, and droughts, wildfires and powerful storms are becoming more common. It comes at a time when action, not new legal theories, are needed.
In the wake of the Supreme Court ruling, some have pointed out that states like Maine, which has taken steps to reduce emissions and prepare for climate change, can continue their efforts. But power plant emissions, like much other pollution, don’t stop at state borders. Much of Maine’s air pollution woes, for example, are due to pollution that is blown into the Pine Tree state from other states and Canada. This again speaks to the need for national, and international, solutions to deal with emissions and their driving impact on climate change.
Clearly, Congress shares the blame for not doing more to tackle climate change. In the face of congressional inaction on climate change, the EPA under then-President Barack Obama unveiled its plan to tackle a significant source of greenhouse gas emissions — called the Clean Power Plan — in 2015. The plan, which focused on reducing power plant emissions, was quickly challenged in court and put on hold by the Supreme Court in 2016. The plan was then scrapped by the Trump administration. It was replaced by a different plan, the Affordable Clean Energy rule.
Several states and private companies challenged the repeal of the Clean Power Plan and others sought clarity on what standards should be met. These cases were consolidated and heard by the Supreme Court and resulted in the June 30 ruling.
Interestingly, the emissions reductions that were sought by the Obama administration — and stalled by the Supreme Court in 2016 — have already been met, largely because of the closure of many of the nation’s coal-fired power plants.
Still, this ruling should be seen as a wakeup call to Congress to take action on “major questions” facing the country, such as climate change. If they continue to fail to take comprehensive action, the court has sent a signal that it won’t tolerate government agencies doing this work on their own.