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Supreme Court of the United States on West Virginia v. EPA

Click Here for a scan of news/commentary and opinion re the June 30, 2022 decision

File:SCOTUS News re West Virginia v EPA Decision.pdf

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June 30, 2022

News | Commentary | Opinion

Re: U.S. Supreme Court Decision on West Virginia v. EPA

Read the Decision

• https://www.supremecourt.gov/DocketPDF/20/20-1530/205559/20211217145954348_West%20Virginia%20v.%20EPA%20final.pdf

Issues / Oral Argument / Review

• https://www.law.cornell.edu/supremecourt/text/20-1530

• https://www.law.cornell.edu/supct/cert/20-1530

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News / Opinion

Gina McCarthy, President Joe Biden’s national climate advisor, says "we have to be creative" with climate strategies and solutions

An interview with Time Magazine comes as the U.S. Supreme Court announces its decision to curtail Environmental Protection Agency regulatory powers

Read the Full Time article

• https://time.com/6192857/biden-climate-scotus-west-virginia/

Chart a Path to Slash Emissions (even as SCOTUS turns against the EPA's authority to act)

(excerpt)

“We’ve set very solid goals, we’re making significant progress on the transition to clean energy,” she told TIME on June 28. “And that is not going to live and die by the Supreme Court’s decision.”

To meet the White House’s goals, she said, the Administration needs to get “creative” and find novel ways to galvanize the energy transition. That includes inventive use of regulations at places like EPA, as well as the Administration’s engagement with the private sector, use of its own purchasing power, and use of the Defense Production Act to accelerate the production of domestic clean energy technology, she says. “It can’t just be about using regulations or using Congress to fix this; to actually continue accelerating, we have to be creative,” she said, one of at least ten times she used the word creative in the course of the conversation.

It is certainly true that EPA power plant regulations are far from the only—or even the most important—tool in the climate policy toolkit in 2022. But in order to get the U.S. anywhere near the Administration’s goal of slashing emissions in half from 2005 levels by 2030, the creativity that McCarthy speaks about needs to be matched with speed and focus...

One of the reasons McCarthy is hopeful, she says, is the government now has a wider range of options for how to address climate change than when she first engaged in the fight. After failing to pass climate legislation in his first term, President Barack Obama turned to the EPA to pass new regulations that would cut emissions from power plants. With McCarthy as its administrator, the agency issued the Clean Power Plan in 2015. The regulation set state-by-state emissions reduction standards for the power sector and was designed to shut down coal-fired power plants—though states were left to decide on their own how to meet their targets. While it never actually took effect as it wound its way through the courts, it quickly became the centerpiece of Obama’s climate strategy.

On the surface, the circumstances today look similar. Congress continues to drag its feet on climate funding and the Administration is turning to second-best options to regulate emissions. But McCarthy says the picture is actually radically different. While large utility companies opposed the Clean Power Plan, they have since embraced the need to transition to clean energy and have partnered with the Biden Administration. And with climate change now seeping into a range of other areas—from trade to agriculture—the Administration no longer needs to rely on narrow authorities under the Clean Air Act. “During the Obama Administration, you know, it was so much earlier on in the climate challenge,” said McCarthy. “When I ran the EPA, it was the linchpin, and the options were limited. It was an entirely different conversation.”

In discussing climate actions Biden has taken that wouldn’t have been imaginable during the Obama years, McCarthy cites his use of the Defense Production Act, which will allow the government to coordinate with industry on the production of a range of clean energy technologies including solar panels, heat pumps, and insulation. The Biden Administration’s commitment for the federal government to transition its fleet of cars and trucks to zero-emissions vehicles shows how it’s setting a market signal for industry to transition, she says. And she touts the work the Administration has done to expand offshore wind, bringing together state governments and the private sector to help rapidly expand the clean energy source.

Despite the Supreme Court ruling in West Virginia v. EPA, the EPA’s work remains a key component of the Biden Administration’s strategy. While the Supreme Court significantly curtailed the agency’s authority to make major changes to the nation’s power sector under a particular provision of the Clean Air Act, it didn’t limit the agency from addressing climate change in other ways. On Wednesday, EPA Administrator Michael Regan said on a TIME-moderated panel at the Aspen Ideas Festival that following the Supreme Court ruling, the agency planned to show the industry other environmental regulations it can implement under its remaining authority. “We have a suite of regulations that we can present to the power sector in one fell swoop, looking at regulating water, waste, and air quality,” he said. “And the power sector then can take a look at the economics to comply with those rules at one time, or they can say ‘hey, to hell with the past, let’s invest more quickly in the future.'”

It’s not clear that all of these so-called ‘creative’ measures put the Administration on track to meet its emissions reductions goals. It’s hard to have an up-to-the-minute accounting of where all of these initiatives leave those targets, but an in-depth analysis from the Rhodium Group earlier this month that takes account for a range of policy developments suggests it will be tough without Congress’ help. Right now, without further policy action, emissions will remain flat and lead to a decline of 17-25% below 2005 levels in 2030, the report finds. Congressional legislation that would provide tax incentives for clean energy deployment, among other things, combined with much of the work McCarthy mentions, could get the U.S. above the 50% reduction threshold that the Administration promised.

Congress does appear likely to enact some form of bipartisan climate spending bill, though the exact contours remain unclear. McCarthy, of course, says she’s optimistic. “This is all about getting to a 50% reduction in greenhouse gases by 2030,” she says. “We think that the work that we’re doing now will get us very close to that.”

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More on the Decision:

Supreme Court restricts the EPA's authority to mandate carbon emissions reductions

Via National Public Radio

By Nina Totenberg / Legal Affairs Correspondent / News of the U.S. Supreme Court

Read and/or Listen the NPR story / All Things Considered

• https://www.npr.org/2022/06/30/1103595898/supreme-court-epa-climate-change

The U.S. Supreme Court on Thursday dealt a major blow to the Environmental Protection Agency's power to regulate carbon emissions that cause climate change. The decision by the conservative court majority sets the stage for further limitations on the regulatory power of other agencies as well.

By a vote of 6 to 3, the court said that any time an agency does something big and new – in this case addressing climate change – the regulation is presumptively invalid, unless Congress has specifically authorized regulating in this sphere.

"That's a very big deal because they're not going to get it from Congress because Congress is essentially dysfunctional," said Harvard law professor Richard Lazarus, an expert on environmental law. "This could not have come at a worse time" because "the consequences of climate change are increasingly dire and we're running out of time to address it." ...

The issue before the court was how the EPA can regulate coal-fired power plants, which in this country are the single largest source of carbon emissions that cause climate challenge. The Obama administration set state-by-state carbon limits and encouraged states to rely less on coal and more on alternative energy sources. Even though the program was blocked by the courts, it met its targets 11 years ahead of schedule for the simple reason that it turned out coal was too expensive compared to other power generating sources.

But on Thursday, the Supreme Court turned thumbs down on any such systemic approach. Bringing to life what the court has called "the major questions doctrine," the court said that neither the EPA nor any other agency may adopt rules that are transformational to the economy--unless Congress has specifically authorized such a rule to address a specific problem, like climate change.

Writing for the court majority, Chief Justice John Roberts said that under what the court has recently called the "major questions doctrine," neither the EPA nor any other agency may adopt rules that are "transformational" to the economy — unless Congress has specifically authorized such a transformative rule to address a specific problem, like climate change.

In "certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us 'reluctant to read into ambiguous statutory text' the delegation claimed to be lurking there," Roberts writes. "To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to 'clear congressional authorization' for the power it claims."

Justice Elena Kagan, in a furious dissent, said essentially that the Court is making up new rules that contradict nearly a century of regulatory law. The text of the Clean Air Act, she said, clearly anticipates that the EPA will have to deal with new problems and uses broad language to allow that. The Court majority, she says, "does not have a clue about how to address climate change...yet it appoints itself, instead of congress or the expert agency...the decision-maker on climate policy. I cannot think of many things more frightening."

The decision appears to enact major new limits on agency regulations across the economy, limits of a kind not imposed by the court for 75 years or more. The decision, for instance, casts a cloud of doubt over a proposed Securities and Exchange Commission rule that would require companies offering securities to the public to disclose climate-related risks – like severe weather events that have or likely will affect their business models. Also in jeopardy is a new interim rule adopted by the Federal Energy Regulatory Commission "aimed at treating greenhouse gas emissions and their contribution to climate change the same as all other environmental impacts [the Commission] considers."

The decision was a particularly bad omen for environmentalists. In a very real sense, it seemed to reject any holistic regulatory attempt to deal with climate change.

Climate Change News

Time to act to make a positive difference

Strategic Demands

for Environmental Security

• https://unfccc.int/process-and-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/nationally-determined-contributions-ndcs
• https://www.wri.org/ndcs/tracking-progress
• https://www.climatewatchdata.org/2020-ndc-tracker
• https://climateactiontracker.org/
• https://carbon-pulse.com/ndcs/

The Media Steps Up Its Climate Coverage: Visit the U.S. 'Climate Desk' Collaboration

• https://www.greenpolicy360.net/w/Climate_Desk

"We have to identify the problem, then act in many ways to solve the problem. Global warming is the threat of our times."

-- Jerry Brown, California Governor

"We’re going to need to use every tool in the toolbox if we’re going to solve this problem."

-- Michael E. Mann

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