On Thursday, the US Supreme Court issued a ruling in a case that would severely impede America’s ability to limit its carbon emissions under the Clean Air Act. In an unusual move, the court kept a case alive that focused on an emissions plan devised by the Obama-era Environmental Protection Agency — even though that plan was abandoned and replaced by both the Trump and Biden administrations.
In its decision, the Supreme Court determined that the EPA is only given the power to control emissions from existing facilities – it cannot force utilities to move to different, cleaner-generating technologies. This would make it extremely difficult to use the Clean Air Act to transition from coal to renewable energy, and raises the question of whether the Clean Air Act can be used to set effective climate policy.
twists and turns
The case is a product of a legal back-end that began nearly two decades ago. During the Bush administration, the EPA decided that the Clean Air Act did not give the agency the authority to regulate carbon dioxide emissions. Several states sued, and the matter eventually reached the Supreme Court, which ruled that the EPA’s claim was false: the Clean Air Act was required to determine whether greenhouse gas emissions posed a threat to the American public. .
Bush’s EPA was forced to rely on the science and produced a document called “Danger Discovery” which concluded that greenhouse gases did indeed pose a threat. But the administration, in its second term, ended the clock without issuing a finding, leaving it to the Obama administration to issue one and begin the process of issuing regulations. It did so, only to end up in court long after the Trump administration scrapped the rules and released a plan that would “address” carbon dioxide emissions without requiring any emissions cuts.
That non-plan also ended up in court long enough to allow Biden to be elected, at which point the new EPA withdrew it. Normally, this would be where courts would announce lawsuits against the Trump plan since the plan was rolled back, and the EPA would begin the process of drafting new rules. And in fact, a district-level court vacated the case against the EPA. But in an unusual move, the US Supreme Court kept the case alive to address questions brought by a coalition of states and coal companies regarding the plan devised by the Obama-era EPA.
The issue there relates to what methods the EPA can use to reduce national carbon emissions. The Clean Air Act instructs the agency to identify “the best emissions reduction practices … that have been adequately demonstrated”. This precludes the use of carbon capture at fossil fuel plants, as that technology has not been adequately demonstrated anywhere. In its absence, there is no way to significantly reduce coal plant emissions; As such, the Obama-era EPA created regulations that encourage a shift to cleaner generating sources.
This complicated history ultimately resulted in West Virginia vs EPA, which asked the courts to use cases that were otherwise controversial for a vehicle to operate as, to determine whether the EPA had the power to frame rules that would result in the power being used on the grid. Production technologies will change.
In a decision authored by Chief Justice John Roberts and joined by his fellow Conservative court members, the Supreme Court has now formally revived the case and referred it back to a lower court. The Supreme Court has also determined that the EPA has overstepped the powers granted by the Clean Air Act. This means that the EPA can only address carbon emissions by setting limits on existing generators that can be met through installed technology. This would make it very difficult, if not impossible, to reduce emissions from coal plants and thus harm a key component of Biden’s climate policy.
We are currently reading the verdict and will update this story with details soon.