Originally published by The Philadelphia Inquirer, July 9, 2022
The Supreme Court’s ruling is a setback. It will only cause more confusion for power companies by creating uncertainty and taking highly effective measures for reducing carbon pollution off the table.
As most observers expected, the U.S. Supreme Court ruled last week to significantly undermine the authority of the Environmental Protection Agency under the Clean Air Act to limit carbon pollution from power plants, which will hinder U.S. efforts to fight climate change.
What matters now is how we respond.
In truth, there is only one option: We must redouble our efforts. The urgent need for climate action is not going away.
At the heart of the ruling is the Clean Power Plan, which was designed by the Obama administration to reduce climate pollution, not only at individual power plants but also to provide incentives for all plants to shift from coal to gas or fossil fuels to wind and solar. Generation-shifting is cheaper than other approaches, the EPA said, and power companies supported the agency. But for this Supreme Court majority, the Clean Power Plan’s incentivization structure for sector-wide power companies to shift their generation from coal to renewables went too far. In a 6-3 decision authored by Chief Justice John Roberts, the court said the Clean Air Act did not explicitly provide that authority.
“The urgent need for climate action is not going away.”
As part of the ruling, the court relied on the “major questions doctrine,” which states that in matters of great and national significance, Congress needs to specify each agency’s regulatory power. The doctrine originated from a 2000 opinion, which said the Food and Drug Administration cannot regulate nicotine products because nicotine is not a “drug.”
Here, the court went further, requiring specific congressional authorization of the particular regulatory method the EPA was employing to perform its core responsibility under the Clean Air Act — reducing carbon pollution.
So the big concern, now, is whether the latest ruling on the Clean Power Plan could have ripple effects for the Biden and future administrations, by enabling Congress to withhold approval for innovative solutions to our nation’s biggest problems — from ensuring the safety of food and drugs, to protecting workers’ rights, to policing financial fraud.
Still, the decision could have been worse. All of EPA’s other regulatory authority to address climate pollution under the Clean Air Act remains in effect. This includes the authority to limit pollution in the transportation sector (America’s largest source of carbon pollution) and also from landfills, new power plants, and large existing sources of other air pollutants. And the EPA can still set strong protections on existing power plants using other means besides the Clean Power Plan.
Other federal agencies also have the power to reduce carbon pollution. Take the U.S. Department of Energy, which can adopt more stringent energy-efficiency standards. Local and state governments have the same large legal toolbox for reducing pollution that they had before the decision. Pennsylvania’s legal authority to join the Regional Greenhouse Gas Initiative, for example, is unaffected by this case.
But still, it’s no question that the Supreme Court’s ruling is a setback. It will only cause more confusion for power companies by creating uncertainty and taking common, highly effective measures for reducing carbon pollution off the table.
Despite this, the Biden administration must take advantage of its still ample legal authority to address the climate crisis for Pennsylvanians and people across the United States. Congress also has an essential role to play. It must finish work on bold climate, justice, jobs, and clean energy investments, like the $555 billion that the House of Representatives passed in 2021, to accelerate the growth of America’s clean energy economy.
For people who care more about the economy than the environment, remind them that the massive investments needed to reduce carbon pollution will also generate millions of jobs. This includes an estimated 243,000 in Pennsylvania alone, many in skilled trades and manufacturing — far more jobs than we will lose in fossil-fuel sectors.
We must continue fighting for climate action – in court, in Congress, in state legislatures, and before local governments, and at the ballot box. Rather than letting this Supreme Court decision deflate and demobilize us, let’s redouble our efforts to create the inclusive, sustainable — and entirely attainable — world that most of us want.
John Dernbach is a professor of law at Widener Commonwealth Law School. Steve Herzenberg is the executive director of the Keystone Research Center.