Overruled!; Let’s Talk (Supreme) Court Drama
No. Not that Supreme Court decision. Not that one either. Also, not that one. You know what, let me help. We’re here to discuss West Virginia v. Environmental Protection Agency (EPA). On June 30, in a 6–3 vote representing the new conservative supermajority, the Supreme Court ruled that the EPA did not have “broad authority to regulate emissions from power plants that contribute to global warming.” Beyond curbing the EPA’s ability to directly limit GHG emissions and imperiling Joe Biden’s climate goals, let’s talk a bit about what this ruling really means.
At the heart of this case is the Obama-era Clean Power Plan and a little known legal theory referred to as the ‘major questions doctrine,’ which states that “if an agency seeks to decide an issue of major national significance, its action must be supported by clear statutory authorization.” Chief Justice Roberts, in penning the majority’s opinion, stated that while “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal…may be a sensible ‘solution to the crisis of the day’” the agency does not have the authority to “adopt its own such regulatory scheme.”
Ignoring for a second that the Supreme Court took the unprecedented step of ruling on something that was never passed or established law — the Clean Power Plan was stayed by the court in 2016 and never actually enacted — one could argue that the EPA, with its Clean Air Act mandate to “pick the best system of emissions reduction” available, was operating directly within its Congressionally established directive. One could further highlight that the 2007 Supreme Court case of Massachusetts v. EPA, which decided that greenhouse gases qualified as air pollutants, established a precedent that brought GHG emissions reduction well within the agency’s purview (just another nail in the coffin of Stare Decisis). In fact, in her dissenting opinion, Justice Elena Kagan did just that. Roberts disagreed, classifying the Clean Power Plan’s preferred method of emissions reduction, creating emissions targets that required ‘generation shifting’ — i.e., transitioning from coal power to lower emitting power types — to meet them, as an overreach.
If all of that sounds like a whole lot of abstract legalese that’s because it is. Bottom line: while the EPA’s ability to regulate GHG emissions emitted by power plants (and other sectors) technically remains intact, this ruling ensures that it will be “slow — and it won’t happen without a fight.” With the EPA announcing in the wake of this decision that they don’t plan to propose any official carbon and emissions guidance until March 2023, and with that action expected to be watered down, one major arrow has been removed from President Biden’s climate action quiver. So, it would appear that the path to President Biden’s emissions reductions goals officially runs through Congress, where the Democrats are currently renegotiating hundreds of billions of green transition investment with Senator Joe Manchin of West Virgin… Oh. Right.
Regardless of what’s going on in Washington, FWP continues to source high impact climate solutions on behalf of our clients. Be it investments in renewable energy, building efficiency, sustainable food and agriculture, or the latest climate tech, we are identifying a myriad of ways for our clients to put their money to work and directly reduce GHG emissions.
Tucker Pribor, Director of Research
Wind energy is “booming” in many of the same states that sponsored the above lawsuit.
Want to find ways to reduce your own personal emissions? Here’s a primer on Community Solar and how you can sign up for it.
Looking for some climate-focused beach reads? FWP recommends Speed & Scale: An Action Plan for Solving Our Climate Crisis, written by venture capitalist John Doerr, who also penned the book Measure What Matters (a non-climate recommendation from this author). Finish that? It may be time to revisit Bill Gates’ How To Avoid A Climate Disaster.
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