Supreme Court threatens federal climate action

today, in a non-existent plan ruling with non-existent damages for the plaintiffs, the Supreme Court took the opportunity to curb the EPA’s ability to regulate carbon emissions in the electric power sector.

In a summer of major US Supreme Court decisions, West Virginia v. Environmental Protection Agency was one of the stranger cases on record. First, it concerned a dispute that did not actually exist. The complaint was about the Clean Power Plan, a set of rules issued by the EPA in 2015 that would have forced power plants to significantly reduce carbon emissions by 2030. Only the plan never came to fruition. Fossil fuel executives and Republican officials raised hell about its potential economic effects, went to court and quickly suspended the rules. A year later, then-President Barack Obama handed Donald Trump the keys to the EPA, and the plan was gone forever.

So environmental advocates were shocked and worried when the Supreme Court decided to challenge the plan that had been going through the courts. Those fears were not unfounded. Writing for the six-judge conservative majority, Chief Justice John Roberts said the consequences of such a policy were too great to enact without more explicit congressional approval.

That reasoning doesn’t undermine the EPA as much as some environmentalists feared. The decision will still allow the agency to regulate emissions from power plants, but more narrowly than before. And the court didn’t take the opportunity to overturn precedent that says agencies like the EPA can deal with carbon emissions more broadly. But the decision remains a serious blow, underscoring the court’s skepticism about ambitious actions by federal agencies and offering a potential road map for future legal challenges to climate policies. “They’re saying, ‘We’re loading the gun today, but we’re not going to point it at anything else yet,'” says Jay Austin, senior staff attorney at the Environmental Law Institute, a nonprofit legal group.

“The Court is making itself — rather than Congress or an expert agency — the climate policy decision maker,” Justice Elena Kagan wrote in her dissent, joined by two other liberal justices. “I can’t imagine many more terrible things.”

The suit, brought by a group of red-handed state attorneys general, hinged on a section of the Clean Air Act that allowed the agency to set a “best-in-class emission reduction system” at power plants. The issue before the Court was one of scope. Perhaps by “best system” Congress meant that the EPA could require emission reduction technology at certain power plants, as it did for other pollutants. Or perhaps it was a broader mandate, allowing for measures that could result in the shutdown of a coal-fired power plant in favor of cleaner energy production elsewhere. With the Clean Power Plan, the EPA opted for a more far-reaching interpretation.

But the disagreement foreshadowed an even bigger legal question: What can government bureaucrats do with the often vague instructions given to them by Congress? Traditionally, there’s a certain way things go in Washington: elected officials can’t be expected to spell out every detail of every policy, nor would they want to. So it becomes the job of the people in the regulatory agencies who take the sketchy laws and translate them into action. Judges usually don’t like to interfere with that. Under a doctrine known as “chevron deference,” citing a 1984 Supreme Court decision involving an oil company, the justices have repeatedly said it’s best to let scientists and policy experts do their jobs.

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