Thursday’s Supreme Court decision regarding the use of the Clean Air Act to regulate carbon dioxide emissions from power plants comes down to two specific issues: whether the Supreme Court should take up the matter at all; And did Congress delegate enough powers to the EPA to implement a specific regulatory plan first proposed during the Obama administration? But the case was decided against a backdrop of conflict between the court’s conservative and liberal justices, and some of that conflict spilled over into the ruling.
We’ll tackle each issue below and discuss what it means for US climate policy. But one thing that should be clear is that this is a fairly minimal decision because it only applies to the EPA’s ability to regulate carbon emissions from existing facilities, not environmental regulations more broadly. While this does not leave the EPA with a clear next step, it does leave avenues for regulating new power plant construction.
As described in our immediate coverage, the decision focused on the Clean Power Plan, a set of EPA rules drafted during the Obama years that immediately led to lawsuits that stalled it, as far as the Trump administration. canceled it. With another new administration, the EPA is now drawing up replacement rules. As such, the EPA saw no reason for the Supreme Court to intervene on this point.
Chief Justice John Roberts’ decision gives reasoning for the court to do so. The Trump administration formally repealed the Clean Energy Plan through the same executive action that proposed the replacement: the Affordable Clean Energy Rule. Although that rule was overruled by the courts just before Biden’s inauguration, the court indicated that Trump’s EPA had fundamentally misunderstood the Clean Air Act. In the process, the court coincidentally rejected the rejection of Trump’s Clean Power Plan, technically returning it to implementation.
While Biden’s EPA asked for (and received) the injunction, it could, in theory, ask for the injunction to be lifted at any point and try to implement the Clean Energy Plan. Therefore, Roberts concludes, it is entirely appropriate for the court to address the arguments made in the lawsuits that the Clean Power Plan faced when it was first proposed.
The Court’s Disagreements of Three Liberal Justices, written by Elena Kagan, notes that there was no reason to make this choice. ,[T]The Court’s authority is discretionary, and because no one is now subject to the terms of the Clean Power Plan, there was no reason to reach a decision on the matter,” she wrote. Not only is it not being implemented, she Notes, but reality is made irrelevant.
Roberts argues that the Clean Power Plan is important in part because it was expected to cut coal from about 40 percent to 27 percent of America’s energy production in 2030. But Kagan noted that we were already far from that goal (coal supply accounted for 22 percent of America’s electricity last year and is still falling). This gives the EPA even less reason to have anything to do with the clean energy plan and thus less reason for the court to intervene. The disagreement concludes that the majority cleverly chose to pursue the case to advance an anti-regulatory agenda.
What is a “system”?
As for the case itself, the decision hinges on exactly what the EPA was authorized to do when Congress passed the Clean Air Act. That act can be viewed as having two components: a set of rules for pollutants that were deemed dangerous when the act was passed, and a flexible mechanism that the EPA could identify and regulate additional hazards that would later become apparent. Went. The recognition that carbon dioxide presented a threat triggered this latter mechanism, which has two parts.
Part one involves regulation of newly built production facilities, which was not an issue in this case. So, should the EPA ever create regulations that limit the construction of fossil fuel plants, this decision will do nothing to stop them from taking effect. Second, what is in dispute involves framing rules for existing sources.
According to the text of the Clean Air Act, this includes the EPA using “the best method of emissions reduction … that has been adequately demonstrated,” using it to identify viable reductions and to determine policy that achieves those reductions. is done for. Currently, we do not have a system for removing carbon dioxide from combustion gases that qualifies as “adequately demonstrated”, which severely limits what we can achieve through conversion to fossil fuel plants. limits. So instead, the EPA designed a system that would encourage grid operators to move production to clean power plants such as wind and solar farms.
Almost every aspect of it was the subject of controversy in this decision. The majority refer to the existence of this regulatory mechanism as an “underused backwater”, arguing that it should not be relied upon to drive major changes. Dissent argues that Congress framed it as a fallback for cases where more specific rules do not apply, and that it makes no sense to criticize it for serving as intended. While the majority agree that the term “system” is too vague to describe emissions control, dissent thinks it was designed as a broad term to give the EPA flexibility in designing solutions.
In the end, the majority agreed with the arguments made by states and coal companies: the Clean Power Plan would result in significant changes to the nation’s energy economy, so it should not be allowed without specific instruction from Congress. Roberts cites the cost and loss of jobs at fossil fuel facilities predicted by the EPA to emphasize the importance of the plan. Again, the dissent suggests that this is ironic, given that the country has already undergone major changes without significant disruption. (Roberts also conveniently overlooks the offsetting benefits that the EPA described in the Clean Power Plan.)
From the point of view of dissent, Congress had already indicated its intention to allow this in the Clean Air Act, which called for a “best system” full stop—no ifs, elses, or buts of any kind relevant here. No. The parties do not dispute this. generation transfer [to renewables] Truly the ‘best system’.”