SCOTUS opinion considered a setback in the fight against global warming

Climate and legal scholars from the University of Miami weigh in on the Supreme Court’s decision against the Environmental Protection Agency.



As scientists continue to warn that time is running out to avert climate catastrophe, the US Supreme Court on Thursday limited the Environmental Protection Agency’s power to regulate greenhouse gas emissions existing power plants, dealing a blow to the Biden administration’s plans to fight globalization. warming up.

In a 6-3 decision on the case West Virginia v. Environmental Protection Agencythe court ruled that Congress, not the EPA, should have the power to enact decisions on how to address climate change.

“Capping carbon dioxide emissions at a level that will force a national transition from using coal to generate electricity can be a ‘sense solution to the current crisis’. But it is implausible that Congress gave the EPA the power to enact such a regulatory scheme on its own initiative in Section 111(d),” Chief Justice John Roberts wrote, referring to a section of the Clean Air Act, for the majority. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting under clear delegation from that representative body.”

The court’s other five conservative justices joined Roberts.

In the dissent, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, criticized the majority’s decision, writing that “Whatever else this Court may know, it has no idea how to combat climate change. And let’s state the obvious: the stakes here are high. Yet the Court is today blocking action by the agency authorized by Congress to reduce carbon dioxide emissions from power plants. The Court names itself, instead of Congress or the expert agency, the climate policy maker. I can’t think of many scarier things.

Katharine Mach, associate professor of environmental science and policy at the University of Miami’s Rosenstiel School of Marine and Atmospheric Science, also found the decision disturbing.

“The response to climate change requires flexibility and adaptive governance. Locally and nationally, we need to be able to meet new challenges,” said Mach, who is a lead author of the Intergovernmental Panel on Climate Change’s Sixth Assessment Report. “Today’s decision is concerning because it limits the government’s ability to keep Americans safe and healthy as the climate continues to change and actions to limit our emissions of heat-trapping gases remain woefully inadequate.”

Thursday’s ruling, which follows other controversial Supreme Court rulings in recent days — from gun rights to religion to abortion — is a victory for states and companies of coal led by the Republicans.

The case revolves around the EPA’s Clean Power Plan, an Obama-era policy established in 2015 that sets emission guidelines states must follow to limit carbon dioxide (CO₂) emissions from power stations. (In 2020, CO₂ accounted for about 79% of all US greenhouse gas emissions from human activities, according to the EPA.)

Several states and other parties have challenged the Clean Power Plan in federal court. And in 2016, the Supreme Court, in a 5-4 decision, stopped its implementation.

Then, under the Trump administration, the EPA repealed the plan, replacing it with new, more lenient guidelines for power plants.

A total of 22 US states then challenged the repeal of the Obama plan, even as a group of other states and coal companies supported the guidelines proposed by the Trump administration.

Last year, a circuit court struck down the Trump administration’s repeal of the Obama settlement. And that’s when the states appealed to the Supreme Court, saying the lower court’s decision gave the EPA sweeping powers over carbon emissions.

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Jessica Owley, professor of law and faculty director of the environmental law program at the University of Miami School of Law, specializing in climate change law and policy, answered some critical questions about Thursday’s decision.

The decision significantly reduces the EPA’s power to regulate carbon emissions from existing power plants. How much of a blow does this take against the Biden administration’s plans to tackle climate change?

It’s hard to say this is a blow to Biden’s climate plans, mostly because Biden has announced goals but not an actual plan to meet them. This case examines the legitimacy of Obama’s Clean Power Plan, something the Biden administration has previously said it will not implement. However, the Biden administration has yet to announce its plan for implementing this part of the Clean Air Act. Without comprehensive climate change legislation, the Clean Air Act is our best shot at reducing carbon emissions, but no administration has yet figured out how to do it.

What will be the main impacts of today’s decision?

There are many ways to think about the impacts of this decision. First, it did not lift any current limits on greenhouse gas emissions from our dirtiest factories because we currently have no limits. This, however, limits the ability of the Biden administration to regulate existing power plants. The EPA has not released its new proposal. They promised it would happen before the end of this year. So, we can’t say yet how much this decision will affect this new proposal.

The real evil of this decision is the court’s adoption of what it calls the “major issues doctrine”. This new “doctrine” limits the action of the agencies. Essentially, the court is saying that the agency’s interpretation of the Clean Air Act is having too much of an impact on the economy. The court argues that if Congress really wanted to give the EPA so much power, it would have said so explicitly. Of course, Congress explicitly recognized that the Clean Air Act would have far-reaching economic impacts when it was enacted in the 1970s – they just didn’t understand the issues of climate change yet.

One could read the decision as a narrow question of how to interpret the word “system” in the context of section 111(d) of the Clean Air Act. The majority maintain that it is only a technological device that would be installed on an installation. The EPA saw the “system” more broadly as something that could involve the energy sector and the coal/gas/renewables mix. But I think it’s a mistake to view it so closely. The real issue isn’t really what the word system means, but the broader idea of ​​the EPA’s power to implement regulations that might affect the economy. We can’t launch a successful fight against climate change while maintaining the status quo, but that’s how the court limits the agency’s action.

And it’s very telling that the majority barely mentions climate change and doesn’t cite Massachusetts v. EPA – the case explicitly stating that the Clean Air Act requires the EPA to regulate greenhouse gases. Both are important elements of dissent.

How will the decision impact how the United States is perceived on the world stage?

The United States is already poorly perceived on the world stage. You’d be hard-pressed to find a country that actually thinks the United States is doing a good job of fighting climate change. This will make it even harder to take the EPA seriously at COP27 in Egypt in November. The United States is still one of the largest economies, and John Kerry, the first US presidential special envoy for the climate, is highly respected. But how can we believe that the United States can respect its commitments?

What other alternatives does the Biden administration have to fight emissions?

Biden is expected to push for climate change legislation. Congress should explicitly recognize the problems of climate change and authorize action. This should be our main message. Stop toying with the margins of a 50-year-old law and tackle the problem head-on. Biden could do a better job of reducing motor vehicle emissions. It could use other elements of the Clean Air Act – ambient air quality standards, for example – or the EPA could work on a rule for existing power plants that treats them plant by plant instead of consider as a whole. But frankly, I think the current court would find a reason to strike down any EPA regulations regarding greenhouse gas emissions. The fact that they took this moot case demonstrates their distaste for the EPA’s climate action.




Teresa H. Sadler