With time ticking for climate action, Supreme Court limits ways to curb emissions

climate, cop26, climate change, with time ticking for climate action, supreme court limits ways to curb emissions

In this July 27, 2018 photo, the Dave Johnson coal-fired power plant is silhouetted against the morning sun in Glenrock, Wyo. J. David Ake/AP hide caption

toggle caption J. David Ake/AP

For two decades, Congress has failed to pass standalone climate change legislation.

That left the Obama White House to rely on the 1970 Clean Air Act in order to craft regulations that would reduce greenhouse gas emissions from power plants, currently the second most carbon-polluting sector in the country.

In its opinion in West Virginia v. the Environmental Protection Agency, the U.S. Supreme Court has now curbed what actions the Biden White House can take under that law.

“EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute,” wrote Chief Justice John Roberts in the majority opinion, which all six conservative justices joined. “That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself,” he wrote.

In practical terms, the decision prevents the agency from setting carbon-emission limits as a way to force the entire power generation industry to move away from burning coal to other, less-polluting energy sources, as the Obama Administration had attempted to do with its Clean Power Plan.

While expected, “this was a significant blow” said Carol Browner, Director of the White House Office of Energy and Climate Change Policy during the Obama Administration. Being able to look across the entire grid and encourage cleaner electricity based on the best, cheapest sources available was a powerful tool to combat climate change, she said.

The decision is a win for coal-fired power plants and the fossil fuel producing states that brought the suit.

“I applaud the Supreme Court’s decision today in West Virginia v. EPA,” said West Virginia Governor Jim Justice in a statement. “This ruling in favor of West Virginia will stop unelected bureaucrats in Washington, D.C. from being able to unilaterally decarbonize our economy just because they feel like it,” he continued.

How limiting is it

Changing how the U.S. makes electricity is still a major climate policy goal of the Biden Administration, even if the path to get to achieve it has narrowed.

Power generation is not only a major emitter itself, but making it more climate-friendly is key to lowering transportation and residential emissions, because electric appliances and vehicles will require low-carbon electricity in order to fulfill their promise, according to Vickie Patton, general counsel for the Environmental Defense Fund.

The timing is important, too. In order to reduce overall U.S. carbon emissions by 50% as of 2030, as the Biden Administration has pledged, electricity generation must slash its emissions even further, by 80% over the same timeframe, according to the Environmental Defense Fund.

While the courts have now limited how the EPA treats carbon dioxide from power plants, legal experts said they stopped short of closing off other means of lower emissions.

“The court restrained itself from saying, ‘You can’t do this and you can’t do that,'” said Jody Freeman, Founding Director of the Harvard Law School Environmental Law and Policy Program. Options like co-firing coal with low-polluting fuels are still on the table, for example. The majority opinion also explicitly did not rule out a cap-and-trade system, which Freeman called, “the silver lining in the in the opinion.”

Current regulators were already planning to work around the decision. EPA administrator Michael Regan said as much earlier this year, indicating that other limits on other pollutants could still steer power generation away from heavily polluting coal. “I don’t believe we have to rely on any one regulation” to reduce greenhouse gas emissions from power plants, he said, according to E&E News.

Advocates for reducing federal authority also say having clearly defined limits to executive power can be helpful when crafting policies that withstand court challenges.

“I think it will be helpful to EPA because it will likely establish the parameters under which they can regulate power plants,” said Jeff Holmstead, a former administrator for the EPA during the George W. Bush Administration. That’s as opposed to guessing where those parameters are and then fighting over them in court later.

Effects on other cases/climate impacts

The Justices also named the “major questions” doctrine in their decisions, which says that agencies cannot assume powers with such “vast” economic and political impacts unless expressly mentioned by Congress. That runs counter to long-standing precedent giving agencies latitude to define the terms of the statutes that authorize their actions.

“It’s this very blunt instrument… that could chill an awful lot of regulation by not just the EPA but other agencies and climate policy,” said Freeman.

The same “major questions” reasoning has popped up in other key climate cases as well, including arguments against regulating emissions from from vehicle tailpipes to weighing the “social cost of carbon” when making a regulatory decision.

Later this fall, the Supreme Court is expected to rule in Sackett v. EPA, a case which explores the question of what exactly are considered “waters of the U.S.” That term, and how it’s applied, are important because the Army Corps of Engineers and EPA use it when deciding what falls under their purview in the Clean Water Act. Both are also working on rules to refine the definition.

While technically about a parcel of marshy land in Idaho, the Justices ruling on that case could have a sweeping effect on how the government regulates pollution in bodies of water generally.

The WV v. EPA decision, said Tom Johnson, an attorney at Wiley Rein who filed an amicus brief on behalf of petitioners, could act as “tea leaves” for how the Supreme court is thinking about the waters of the U.S. case.

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Palay-Palay  National ParkAbout PagudpudFive Levels of Aguinid FallsIntroducing San Pascual, MasbateMount Manmanoc ItineraryAdventures in Fortune Island of Nasugbu | LakwatseroNext Level Mobile Photography with Sony Xperia XZ1 | LakwatseroScuba Diving in Siargao: Discovering the Underwater Treasures of Daku Island | LakwatseroAbout Davao CityHow to Get to AndaJanuary: Cebu & IloiloHow to Get to Mines View ParkKamay ni Hesus: Pilgrimage Site in Lucban | LakwatseroPoon Hill: Three Days of Himalayan AdventureCalvary Hill Cemetery of SagadaHow to Get to TambobongMilford SoundTen Things To Do in Sagada: Bucket List for NewbiesDahoyhoy FallsPilot for a Day: The Ultra Light Aircraft Experience | LakwatseroReal Coffee and Tea Cafe of Boracay | LakwatseroGhorepani Poon Hill TrekAbout Maniwaya IslandHow to Get to Binanga FallsPalo Alto Falls of Baras, Rizal | LakwatseroExplore Moscow: Best Things to Do in the City | LakwatseroStairway to HeavenMount Guiting-Guiting Overnight Trek Complete ItineraryCape Melville LighthouseLa Cathedral Café: Restaurant with a View in IntramurosKapurpurawan Rock Formation: White and BeautifulDay Hike ItineraryThe Sandbox at AlvieraHow to go to Mararison IslandA Weekend of Adventures in South Cebu and DumagueteCalayan Island: A Virtual Diary of Our Epic Journey | LakwatseroFaro de Isla Jintotolo (Jintotolo Island Lighthouse)Low’s PeakAbout Taal VolcanoHow to Get to Mag-aso Falls of BoholSamar: Biri Rock Formations Up Close | LakwatseroBonbon BeachIntroducing Jomalig IslandAbout Cotabato CityAbout TabukLeyte Landing Memorial: A Memorial for a Fulfilled Promise | LakwatseroSilyang Bato, Mount MaramiPanimahawa Ridge and Cedar Falls Day Hike ItineraryFun in the World’s Best IslandSample Albay ItinerariesMagpupungko Beach and Tidal Pools6 Tips for Living in the Philippines | LakwatseroDaraga Church: The Nuestra Señora dela Porteria ChurchTulgao Rice TerracesCape Melville Lighthouse (Faro del Cabo Melville)Canyoneering to Kawasan FallsLake FewaLong Weekend: Five-Day Suggested Itineraries in Luzon | LakwatseroAbout CaponesThe Wichcraft Café of Zamboanga City | LakwatseroHow to Get to GuiuanAll-Female FloorHow to Get to Neri’s VilleDiotay’s EateryShort but Sweet Melaka Getaway | LakwatseroHow to Get to Tinuy-An FallsOslob: The Lost Grandeur of Tumalog Falls | LakwatseroIlocos ItineraryDitumabo Falls: The Mother Falls of San Luis, Aurora!Biking in Kalinga: Trek and Bike to TabukParadise Garden: A Haven for Sea TurtlesSiargao: Magpupungko Beach and Tidal Pools | LakwatseroAbout Bucas GrandeCoral GardenSagadaA Walk in Sangay Siapo Island Before it is Gone? | LakwatseroAmbaguio-Akiki ItineraryCorregidor Island Lighthouse (Faro dela Isla de Corregidor)Faro de Punta de Malabrigo (Malabrigo Point Lighthouse)About CulionNaidi Hill LighthouseBoquete IslandHow to Commute to Temple of LeahCatanduanes: The Heritage Church of Bato | Lakwatsero1. White Water Rafting or KayakingMount Fuji Overnight Climb ItinerarySip & Gogh Paint Studio: Unleash Your Inner Van Gogh | LakwatseroBatanes ItineraryHow to Get to Quitinday HillsAbout Callao CaveDiscover LakawonBiking to Taal: A Fun Ride to Batangas’ Heritage TownAntique Blooming: The Rafflesia of San RemigioMalasimbo Lights and Dance FestivalBacolod ItineraryPoon HillAttractions in Mirador Heritage and Eco ParkHulhumale Public BeachRomblon Island: Bonbon Beach, Tiamban Beach & MoreAdventure in Sabah: White Water Rafting in Padas River | LakwatseroHow to Get to Hinakpan Mystical HillsWelcome to Lake SebuAbout CasiguranAbout BuscalanHow to Go to Kalanggaman IslandFaro de Cabo Bojeador (Cape Bojeador Lighthouse)Backpacking Maldives: Budget Itinerary, Expenses & TipsHow to Get ThereOffbeat Bohol Itinerary: 3D/2N of AdventuresHow to Get to Tawi-TawiAlona BeachPangilatan Falls: The Forgotten Gem of Tapaz, CapizWorld War I: SMS Cormoran II3D/2N Taiwan Itinerary: Taipei – Yehliu – ShiffenLaos for Backpackers: Getting There on a BudgetBasic RequirementsHow to Get to Antong FallsCathedral CaveHow to Go to Gubat, SorsogonAbout SadangaHow to Get to Bugui Point LighthouseHow to Get to Cabra Island LighthouseCebu Itinerary: Three-Day Adventures in the SouthAbout AndaLuna: A Day in the Show Window of Apayao | LakwatseroMargues Blue LagoonFinding Palaui’s Cape Engaño Lighthouse | LakwatseroHow to Get to Mantayupan Falls of Barili, CebuHow to Get to MaligcongLinapacan Islands: Between Paradise | LakwatseroKLIA to KLCCHow to Get to JomaligBanaug ShoalEspadang Bato – Payaran Falls Day Hike Itinerary10 Remarkable Philippine Destinations for Solo TravelMiagao Church: A UNESCO World Heritage Site in IloiloAbout Carbin ReefAbout Parola IslandCabra WreckageCobra Falls: Ozamiz City’s Best Kept SecretBasco: The Chapel on the Hill of Tukon | LakwatseroBack in Kathmandu’s Lovely Mess | LakwatseroHimalayan Adventure: Kathmandu to Pokhara Overland | LakwatseroItineraryChinatown Vancouver (Stop #23)Situbo Falls: Tampilisan's Awesome SurpriseHow to Get to Inambakan FallsTuasan Falls: Another Camiguin’s Charmer | LakwatseroHow to Get to Lake SebuMarinduque Loop: Biking in the Heart of the Philippines1. 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Tubbataha Reefs (Cagayancillo, Palawan)IitineraryAbout Anini-yNacpan BeachAbout Legazpi CityHow to Get to Shifen FallsScuba Diving in Pearl Island of Guiuan, Eastern SamarHow to Get to Nagtabon BeachSiargao Travel RequirementsHow to Go to TanayHow to Get to Garin FarmDay 1: Paoay and San Nicolas (Ilocos Norte)Nueva Vizcaya Weekend ItineraryHow to Climb Mount HamiguitanHow to Get to Santa Cruz IslandMount TalamitamHow to Get to Sambawan IslandBacuit Grill12 Places to Satisfy Your Affogato Cravings in the MetroLion’s RockVictoria HarbourCoronPicture Perfect: The White Island of Camiguin | LakwatseroPanglao: Alona’s Allure | LakwatseroSecrets of the Lakeside: The Waterfalls of Laurel & TalisayMiyaru FaruMemorial Temple of Lord BaoHotel Siesta ShibuyaHow to Get to Tinago FallsSimunul Island: The Birthplace of Islam in the Philippines | LakwatseroBalabac: Onuk Island, Pink Beach & Melville LighthouseBike Diary: Bike and Trek to Buscalan (Mount Polis – Bontoc – Buscalan) | LakwatseroTagaytay (Cavite)Yearend Adventure with Pacsafe Venturesafe 25L GII | LakwatseroFavorite Beach: Punta Sebaring of Bugsuk Island, BalabacWelcome to Apo Reef & Pandan Island!The Ruins of A FamosaHow to Get to Canyoneering SitePacsafe Ultimatesafe Z28, My Newest Ultimate Travel Buddy | LakwatseroPulangbato Falls: The Red Waterfalls of ValenciaLocationSpider House: Boracay’s Chill Corner | LakwatseroThe 10,000 Roses Café of Cordova, Cebu’s Newest CrazeHow to Get to Asik-Asik FallsHow to Get to Dao FallsWelcome to Concepcion1. First Single-Aisle Aircraft to Fly Non-Stop from the Philippines to AustraliaHow to Get to Casino PeakMaadhoo Finolhu (Picnic Island)Cagbalete Travel RequirementsNacpan and Calitang BeachesThe RockiesBalabacPagbilao: Iringan, Malicboy, Bahay-Pagi & Katapang FallsPetronas Twin TowerSta. Fe, Bantayan IslandEverest Base Camp Trek Primer: Frequently Asked QuestionsTaraw Cliff: See the Best View of El Nido | LakwatseroHow to Get to Elephant MountainAbout MandalaySpelunking Rate in Capisaan CavesScuba Diving in Romblon: Blue Hole and Gorda WallHow to Get to Imugan FallsHow to Get to Awao Falls?About SipalayComiran Island: The Pink Beach of Balabac, Palawan | LakwatseroBagan! Oh Bagan! | LakwatseroBuntot Palos Falls, Laguna’s Hidden Grandeur | LakwatseroSandugan WallMagtutuka Rocks