“Intoxicated on its own power”: What the Supreme Court’s decision on the EPA portends for the planet

By: - July 5, 2022 1:01 pm

The Climate Shift Index provides daily scientific estimates of how climate change is affecting air temperature. This map by Climate Central indicates that in parts of North Carolina, high temperatures forecast for July 6 are unusually warm and the likely consequence of climate change.(Map: Climate Central)

Relentless heat — Raleigh is running well ahead of the 30-year average in the number of 90-degree days. The city has already recorded 24 days that hit 90 or above, on pace to blow past the average of 43 days — and there are still two months until meteorological fall.

Persistent drought — 99 of North Carolina’s 100 counties are classified as experiencing some level of drought, as of June 28.

Tropical Storm Colin, the third named storm in the Atlantic, formed off the coast of the Carolinas over the weekend. Although it only brushed the North Carolina coast and caused no damage, it arrived a month ahead of schedule. Atlantic hurricane data from the National Weather Service shows that third such storms usually arrive Aug. 3.

This is climate change.

Nonetheless, on June 30, the U.S. Supreme Court ruled 6-3 in West Virginia vs. EPA that the agency had only the narrow authority to regulate emissions of individual power plants, but could not implement broad “generation shifting” on the energy sector. Generation shifting would have allowed the EPA to force operators of coal-fired power plants to transition to renewable energy sources.

The Court’s conservative majority ruled that the EPA needs explicit permission from Congress to undertake such a bold and significant step — unlikely given the current political winds. Under the “Major Questions Doctrine,” if an agency seeks to decide an issue of major national significance, its action must be supported by clear statutory authorization from Congress.

Jason Rylander, senior climate attorney at the Climate Law Institute, acknowledged that the decision was a setback in the face of an existential crisis. “We should be ourtaged,” Rylander said during a webinar after the ruling came down. “But the EPA can still regulate greenhouse gases. The Department of Interior can still phase out drilling on federal public lands.”

Duke Energy spokesman Ben Goldey told Policy Watch via email that the utility is “reviewing the Supreme Court’s ruling; however, we believe there would be no immediate impact on the retirement dates for our coal plants.”

Market forces have prompted major utilities, such as Duke, to reduce their use of coal, which is expensive, and decrease their carbon emissions ahead of schedule. Duke plans to fully wean itself off coal by 2035, subject to approval by state regulators.

Goldey said the elimination of this fuel source “would be part of largest planned coal fleet retirement in the industry, and we are making great progress to achieve this goal.”

Nonetheless, the Court’s decision sets an unsettling precedent for bold environmental actions by Biden administration. The EPA has teed up regulations on tailpipe emissions — crucial because the U.S. transportation sector ranks first in greenhouse gas emissions — and water quality, both of which are being challenged by conservative states. The Supreme Court is scheduled to hear those cases in its next term.

Policy Watch spoke with UNC-Chapel Hill professor Don Hornstein about the legal and existential implications of the decision. Hornstein is the Aubrey L. Brooks professor of law, and a member of the university’s Institute for the Environment and the Environment, Ecology and Energy Program. He specializes in environmental, disaster, insurance and administrative law.

This interview has been edited and condensed for clarity.

Aside from the legal intrigue, what are the real-world ramifications of this decision?

I suppose it could have been worse. It could have rolled back Massachusetts v. EPA, which recognized the ability of EPA to regulate greenhouse gases at all. The decision did not go that far. That would have been the worst case: that the agency could do absolutely, absolutely nothing about this. And that didn’t happen.

But Obama’s Clean Power Plan set a measure of what coal-fired power plants should do, based on highly efficient techniques, like carbon capture, which is very expensive. It also gave them an alternative to satisfy their obligations by investing in in renewables. That’s what’s been been taken away.

The EPA is going to be forced to be more innovative. And yes, regarding insurance, we’re dealing with hundreds of billions of dollars, sometimes annually, for climate losses now. So insurers will stop offering insurance, as they often do now, with flood insurance. They’ll leave it to the federal government.

And at some point, the prices of that get so high, that it’s hard to subsidize. It’s like a game of Whack-a-Mole; the court can’t Whack-a-Mole reality.

Everybody’s waiting for the Biden administration, which has said its regulation of greenhouse gases will not be the Obama Clean Power Plan, but will be something else. In that sense, the immediate effects of the decision might not be completely horrible. Plus, most of the utilities have made the shift away from coal to natural gas. The big winner on this decision is natural gas plants. But that’s pretty much the status quo.

Te EPA has lost a really important tool to control emissions beyond the fence line, such as ‘cap and trade’ incentives for utilities to continue to abandon coal and natural gas. It’s a setback at a time that we can’t afford any setbacks. In fact, we’re long past the time when setbacks become calamitous. Any hope of a 1.5-degree Celsius [increase in global temperatures] is just gone. It seems to me that this decision means it is increasingly likely that 2 degrees Celsius in our grandchildren’s lifetime will be exceeded. There’s evidence that we could be looking at 4 degrees.

It’s not hypothetical here in North Carolina. We experience climate change all the time. We have no time left to lose. And to that extent, this is a huge setback for at a time when United States could do something now.

UNC law professor Don Hornstein (Photo: Steve Exum of Exumphoto)

However, because of legal challenges neither Obama’s Clean Power Plan — nor the Trump version — were ever enacted. So essentially the Court was issuing a decision on a moot rule. Why would the Court bother to take up the case?

There’s a really strong argument that this wasn’t a live case or a controversy on which the court should exercise; that it shouldn’t have been heard at all.

In Massachusetts vs. EPA, Justice Roberts wrote the dissent, based on that the Court shouldn’t launch itself into areas where there’s no live case or controversy. That was Roberts’s so-called principled dissent. And in this recent case, he opens his majority opinion dismissing exactly that argument. What it reflects is a Court just eager to use its own power.

To my mind, this is a Supreme Court that seems completely unrestrained by its own precedent, unrestrained by generations of previous courts that understood the special power that, five unelected justices can have on the national discourse.

When this case is considered in context with the other two recent decisions — Roe vs. Wade and the New York gun ruling — it portends a more troubling pattern of a judiciary that doesn’t respect its constitutional boundaries. Let’s briefly dip into the legal weeds, like the “Major Questions Doctrine” that the EPA decision considers.

The Major Questions Doctrine is premised on the idea that Congress has to signal explicitly that it’s giving a major question [of national significance] to the agency, presumably with some sort of guidance. And the whole reason for this, according to the Court is to respect democracy.

The EPA has had its delegation to address climate change confirmed by the Supreme Court two or three times. And it still will be permissible for Congress to delegate important work to the agencies.

But the court now seeks to revive this Major Questions Doctrine. And there’s a double standard. When President Trump said he was going to build the border wall he claimed he had delegation [from Congress] in the National Emergencies Act. And that was highly questionable. He just invented this legally out of the air. Congress plainly didn’t agree with it, and refused to appropriate the money. It had zero congressional support.

Yet the Court let it stand. They had an opportunity to stop the president from going forward on something for which there was no authority. To the extent they have a major question issue, that was it. However, they didn’t stop it, like they they did with the Clean Power Plan.

Those two examples show an inconsistency in the Court: When Republican presidents overreach, they are often given a green light, but when a Democratic president in their view overreaches, you know, whatever they’re doing should be stopped.

It seems like the court could use this case as precedent in upcoming environmental cases — Waters of the United States, the tailpipe rule. What can the EPA do if the agency is hamstrung by the courts?

This decision only makes climate worse. Decisions on other environmental cases and challenges that are being made, in the name of “democratic values” are also going to make life on Earth worse. This is a court that is intoxicated with its own power at all fronts. When you strip away all these lines of cases, what remains is the court, the unelected court, being able to decide things that a majority of people don’t want, in the interest of things that are not overwhelmingly, constitutionally based.

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.