President Joe Biden’s ambitious plan to address climate change faces a potential hurdle as the Supreme Court on Monday hears arguments in a case that could restrict federal reach at power plants and beyond.
The court, whose 6-3 conservative majority has already shown reluctance in broadening federal agency scope, will consider the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions from existing coal- and gas-fired power plants under the landmark Clean Air Act.
Their consideration comes on the same day that the United Nations issued another in a series of alarming reports on climate change, this one suggesting that the most vulnerable nations are already behind in adapting to environmental pressure and intensifying natural disasters. It’s distress, the U.N. says, that comes at the hands of fossil fuel
use in the most-developed parts of the globe, including the U.S.
SCOTUS will review the U.S. Court of Appeals for the District of Columbia Circuit’s 2021 decision striking down Republican former President Donald Trump’s Affordable Clean Energy rule.
“There is a possibility that the court can write an opinion that really reflects a core challenge to the fundamental basis of the regulatory state,” Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, told Bloomberg Green.
That Trump rule loosened regulations linked to climate change when compared to the Obama-era Clean Power Plan. Obama’s effort sought to reduce release of greenhouse gases through improved efficiency measures and the adoption of more natural gas and renewable energy instead of coal.
The Supreme Court stayed that plan, preventing it from taking effect, in 2016. Trump’s replacement still sought efficiency improvements but excluded the switch to cleaner fuels.
Two coal companies, as well as a group of states led by West Virginia and North Dakota, are challenging the lower-court ruling.
Coal-aligned groups want the justices to rule that Biden’s administration cannot take a sweeping approach to regulating carbon emissions under Section 111. Such a decision would prevent the EPA from enforcing industry-wide changes, limiting it to actions targeting individual plants.
For the most part, Democratic-led states and power companies — including Consolidated Edison Inc.
and PG&E Corp.
— sided with the Biden administration, as did the Edison Electric Institute, an investor-owned utility trade group.
Earlier this year, a total of 192 Democratic lawmakers, including 29 senators and 163 House members, signed onto an amicus briefing supporting the EPA. They argue that a particular section of the Clean Air Act (CAA) was “intended to confer broad authority on the EPA to regulate and respond to both new and existing air pollutants, as needed to carry out the stated purpose of the CAA,” their filing said.
At a National Press Club event previewing the SCOTUS EPA case, West Virginia Attorney General challenged Edison Electric Institute’s challenge that the case could undermine the EPA beyond the scope of coal power case.
“This once again is about who gets to make the decision. It’s Congress. There’s no secret agenda, if you will, let’s be particular, this is about who makes the decision. And so we know that everyone has different economic incentives as to why they make their decisions,” said Patrick Morrisey, the state’s AG.
“We’re talking about the wrestling match between the legislative branch of our federal government and the executive branch of our federal government, and how we have that balance of power between the two. People shouldn’t read into it, [that we’re] talking about the merits of climate change,” he said.
The Clean Air Act, now more than 50 years old, is considered by many to be one of the most successful pieces of U.S. law ever. Several studies have credited it not only with greatly reducing smog but by paying dividends in health improvement and increased economic productivity.
Many power plants, and fossil-fuel companies in part, have been diversifying their energy portfolios to include more alternatives, such as wind and solar. In fact, Chevron
on Monday announced it will buy Renewable Energy Group Inc. for $3.15 billion.
remains a debate, however, with many pushing for its inclusion in a cleaner-energy future in order to support U.S. energy independence
and keep energy costs down. The industry has targeted methane-emissions reduction and is pushing for the still-developing technology of capturing and storing emissions. Environmental groups say natural gas must be included on the list of emitting fossil fuels that the U.S. and others eventually eliminate.
If SCOTUS finds in the EPA challengers favor, some analysts would consider the setback a tactical and psychological blow for Biden’s administration. He has set a goal of decarbonizing the U.S. power sector by 2035. He wants the U.S. economy as a whole to flip to net-zero emissions by 2050 and to have halved emissions by the end of this decade. Those targets are largely in line with those set by the rest of the major global economies, save for China, the world’s largest polluter, which says it can hit net-zero emissions by 2060.
The White House has set other federal efforts in motion, including making buildings more efficient and changing the fleet of government vehicles to all-electric. But other, incentive-based proposals that would help green the power sector have been so far rejected in a stalled Build Back Better spending plan.
The Supreme Court already has shown antagonism toward broad agency actions, most recently on Jan. 13 when it blocked Biden’s COVID-19 vaccine-or-test mandate for large employers.
The court potentially could dismiss the appeal if the justices conclude the challengers lack proper legal standing with no regulation currently on the books, legal experts said.
A ruling is expected by the end of June.