Last week, the Supreme Court took away a major tool of the federal government to combat climate change that would have required power plants to shift away from coal to natural gas and renewable energy. Even though one of the Environmental Protection Agency’s purposes is to curb the emissions of harmful substances, the six conservative justices said the power plan regulation had gone beyond what Congress authorized under the Clean Air Act.
At the heart of the case was the Obama-era Clean Power Plan, which had never gone into effect and had been challenged by conservative states along with the coal industry. The Biden administration had indicated it would not reinstate the Clean Power Plan and told the justices that they need not even hear this case.
However, the conservative majority of the Court decided to tell the administration what they could not do, that is force the power generating sector as a whole to shift away from coal. That would take an act of Congress, which is unlikely given political realities. The EPA still can require specific power plants to cut greenhouse gas emissions by using the best available technology, and it can still regulate methane emissions from the oil and gas industry and CO2 emissions from vehicles.
Grist reports that some environmentalists had worried that the court would go much further than it did. Cara Horowitz, an environmental law professor at UCLA, said that in some ways she was relieved, and that the ruling could have been worse.
The court’s opinion will likely limit the ability of all federal agencies to protect health and the environment, and in doing so, it showed how it will scrutinize other regulatory schemes that have been developed over decades. Under the court’s new approach, an agency would have to show that Congress specifically authorized an agency’s exercise of power to issue regulations in areas of “major political and economic questions.”
The Clean Power Plan, the court said, did not do that. This idea, Vox reports, is called the “major questions” doctrine and is fashionable among Republican judges but is vague and has never been clearly defined by the court. In the words of one observer, “. . . the court has consolidated power in its own hands to the benefit of factional and cultural interests.”
The three liberal members of the court said that the decision takes away the power of the EPA to respond to the most pressing environmental challenge of our time. Justice Kagan wrote that the Supreme Court does not have a clue about how to address climate change and has now appointed itself instead of the EPA or Congress as the decision maker on climate policy.