On Thursday, the US Supreme Court issued one Verdict in a case that will seriously affect the US’ ability to limit its CO2 emissions under the Clean Air Act. In an unusual move, the court kept alive a case centered on an emissions plan formulated by the Obama-era Environmental Protection Agency — though that plan was scrapped and replaced by both the Trump and Biden administrations.
In its ruling, the Supreme Court noted that the EPA was only given the power to control emissions from existing plants — it cannot force utilities to switch to other, cleaner generation technologies. This makes it extremely difficult to use the Clean Air Act to force a switch from coal to renewable energies, and the question arises as to whether the Clean Air Act can be used for effective climate policy at all.
twists and turns
The case is the result of a legal back and forth that began nearly two decades ago. During the Bush administration, the EPA ruled that the Clean Air Act did not give the agency the authority to regulate carbon emissions. A number of states sued, and the case eventually ended up in the Supreme Court, which ruled that the EPA’s claim was wrong: the Clean Air Act required it to determine whether greenhouse gas emissions posed a threat to the US public.
Forced to rely on science, Bush’s EPA produced a document called the “Hazard Finding” that concluded that greenhouse gases do in fact pose a threat. But the administration expired in its second term without releasing the finding, leaving it to the Obama administration to enact one and begin the process of releasing regulations. It did so, only to end up in court long enough to get the Trump administration to repeal the regulations and issue a plan that would “tackle” carbon emissions without requiring emissions cuts.
This non-plan also ended up in court long enough to allow Biden to be elected, after which the new EPA withdrew it. Normally, the courts here would void the claims against the Trump plan since the plan had been withdrawn, and the EPA would begin formulating new rules. And indeed, a county-level court dropped the lawsuit against the EPA. But in an unusual move, the US Supreme Court kept the case alive to deal with questions raised by a coalition of states and coal companies regarding the plan formulated by the Obama-era EPA.
The question was what methods the EPA could use to reduce national CO2 emissions. The Clean Air Act directs the agency to identify the “best emissions reduction system…that has been adequately demonstrated”. This precludes the use of CO2 capture in fossil fuel power plants, as this technology has not yet been nearly adequately demonstrated. Without them, there is no way to significantly reduce emissions from coal-fired power plants; For this reason, the Obama-era EPA developed regulations that encouraged a shift to cleaner generation sources.
This intricate history ultimately led to this West Virginia vs. EPA, which urged the courts to use use cases that were otherwise contentious as a means of determining whether the EPA has the authority to formulate regulations that would result in changes to the generation technologies used on the power grid.
In a decision authored by Chief Justice John Roberts and joined by his Conservative court colleagues, the Supreme Court has now formally reinstated the case and remanded it to a lower court. The Supreme Court has also found that the EPA exceeded the powers granted to it by the Clean Air Act. That means the EPA can only address CO2 emissions by setting limits on existing generators that can be met with established technology. This will make it very difficult, if not impossible, to reduce emissions from coal plants, damaging a key element of Biden’s climate policy.
We are currently reading the decision and will update this story with details shortly.
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