ORN 28 FEBRUARY a report by a United Nations panel of experts warned of “irreversible impacts to people and ecosystems” from continued greenhouse gas emissions. That same day, the United States Supreme Court considered how robust the role of the Environmental Protection Agency was (EPA) has in reducing carbon emissions under the Clean Air Act, a landmark pollution control law passed in 1963.
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The judges spent little time assessing the future of the planet. Instead, the discussion in West Virginia vs. EPA it was narrow and technical. The case asks if the EPA it can reduce emissions only by regulating techniques and technologies within power plants, as the Trump administration believed, or if it can take a broader approach, including policies to switch to cleaner energy sources.
The broader view of EPA promoted Barack Obama’s Clean Power Plan (CPP), which the Supreme Court suspended when the plan faced a series of lawsuits in 2016. Donald Trump later replaced the Obama regime with a significantly watered-down plan that met judicial resistance of its own. The District of Columbia Circuit Court of Appeals reversed Trump’s cancellation of the CPP in January 2021, throwing the checks at Joe Biden, who wants to cut emissions by 2030. But the new administration decided not to revive the CPP, as their benchmarks had already been met. According to Elizabeth Prelogar, Biden’s attorney general, the EPA it plans to have a proposed new set of rules ready by the end of 2022.
Meanwhile, power plants are running, accounting for about a third of America’s carbon footprint, with no regulations in place. That loophole gave this week’s proceedings an air of surrealism, as the court typically hears only current or impending policy challenges. Ms. Prelogar argued that West Virginia and other Republican states, along with their coal company allies, lacked standing to sue. The parties “are not harmed by the status quo,” she said, and are only trying to “constrain EPA“authority” in the future. Few judges seemed receptive to this claim. Chief Justice John Roberts said the plaintiffs liked Trump’s regulatory scheme and “now they don’t have it.” That is reason enough, he said, for the case to be “fully justiciable.”
Most of the hearing was devoted to analyzing the Clean Air Act to determine what Congress empowered the EPA to do. When the law refers to the “best emissions reduction system,” Justice Stephen Breyer asked, isn’t that an invitation to a more systemic approach than simple plant-by-plant regulation? Judge Elena Kagan questioned the logic of distinguishing between internal and external power plants. A rule centered on the plant itself could be “catastrophic,” she said, as expensive technological fixes could “drive the coal industry out of business.”
But Lindsay See and Jacob Roth, the lawyers arguing against the EPAinsisted that the term “performance standards” in the law limited the EPA to the site-specific rules. And letting the EPA addressing “a problem as massive as climate change”, Ms See said, could reshape energy policy. By interpreting the Clean Air Act that way, “it’s hard to see what costs wouldn’t be justified.”
Judge Samuel Alito expressed the same concern, with a touch of doubt about the threat of climate change. Some people, he said, believe that the climate crisis “is a question of the survival of civilization.” If he EPA will be responsible for balancing that threat with the costs of regulation and the effects on the labor market? Such consultation, several conservative justices suggested, may trigger the court’s “major questions doctrine,” according to which matters of great political or economic importance do not belong to unelected bureaucrats unless Congress has explicitly granted them such authority.
Concerns about federal agencies growing too big for their statutory breeches have animated several recent Supreme Court judgments on policies fueled by the pandemic. Last August, a 6-3 majority ended Biden’s housing eviction moratorium, finding little connection between the mission of the Centers for Disease Control and Prevention and the rental market. In January, the same six justices struck down an Occupational Safety and Health Administration rule that requires large companies to require employees to be vaccinated or tested.
The Biden administration appears headed for another defeat when a ruling is issued this spring. The question is how radically the Supreme Court will restrict the agencies, and whether the EPA will retain tools to reduce America’s cost on the climate. ■
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This article appeared in the US section of the print edition under the headline “Inside out, leave me alone.”