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SHIFTS OF POWER

The Supreme Court has crippled the US’s fight against climate change

Emissions rise from a power station in Belgrade.
Marko Djurica / Reuters
The EPA will no longer be able to regulate carbon emissions from power plants.
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The US Supreme Court has sharply curbed the Environmental Protection Agency’s (EPA’s) powers to regulate the volumes of carbon that power plants emit. The decision, handed down on Thursday (June 30), will damage the government’s ability to act on climate change, especially at a time when a deadlocked or obstructionist Congress refuses to pass new environmental laws.

For half a century, the EPA has pursued the titular goals of the Clean Air Act by setting standards to curb air pollution. However, justice John Roberts wrote as part of the majority in the 6-3 verdict (pdf), the act didn’t permit the EPA to set emissions limits with a view to transitioning the power sector away from coal. Pursuing that kind of transformation via law is Congress’s job, the court ruled.

The verdict is the culmination of West Virginia v. Environmental Protection Agency, a lawsuit that rose out of the EPA’s Clean Power Plan. The plan, put forth by the Obama-era EPA in 2015, was designed to reduce the effects of carbon emissions upon the climate. It was immediately challenged, never went into effect, and was repealed by the EPA during the Trump administration in 2019. The court’s decision will narrow the EPA’s ability to limit carbon emissions, forcing it to focus on its authority to regulate individual power plants rather than setting broader targets for the electricity sector. And if Congress continues to be recalcitrant, or to be dominated by conservative interests, new authorizations that expand the EPA’s powers may never arrive.

The Supreme Court’s EPA ruling explained

Thursday’s verdict hinged on one particular clause in a section of the Clean Air Act: Section 111(d), which directs how the EPA can frame emissions standards for existing power plants. The court’s majority held that the EPA had interpreted that statute too generously, as a mandate to frame standards compelling power producers to shift from coal to renewables. That was a decision of heavy political and economic significance, the majority wrote. “We…find it highly unlikely that Congress would leave to agency discretion the decision of how much coal-based generation there should be over the coming decades.”

On the face of it, this appeared to be a decision about the interpretation of a single clause. But it has wider implications. The verdict didn’t yield the “worst possible outcome,” which is the court’s prohibition of any major question to government agencies, tweeted David Spence, a professor of law and regulation at the University of Texas. But it did yield the second-worst possible outcome: “prohibiting delegations of power to resolve major questions (like climate) that arise after” the passage of an act, as with the Clean Air Act in this case.

The verdict also joined other recent decisions by the court that mesh with conservative goals to protect gun rights, outlaw abortion, and shrink the state’s powers. In a dissenting opinion, justice Elena Kagan, arguing that Section 111(d) did in fact empower the EPA to act sweepingly against carbon emissions, suggested that the court’s majority was interpreting the law conveniently to suit its own priorities.

Kagan recalled a decade-old Supreme Court decision acknowledging that Congress had “delegated to EPA…the decision whether and how to regulate carbon-dioxide emissions from power plants.” That text was clear, she wrote. But the current court, she went on, invoked “special canons [that] magically appear as get-out-of-text-free cards” whenever the legal language threatened to frustrate its “broader goals.”

Kagan added: “Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”

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