As the world stares down the barrel at the irreversible damage that can be done by climate change, experts are urging all countries to take responsibility and accountability for the amount of emissions they have produced. Across the pond, the United Kingdom has committed to lowering emissions by 78% by 2035. In stark contrast, the United States has taken many steps backward in fighting the climate crisis.
Along with the overturning of Roe v. Wade, which stripped away the federally-assured right to abortion, the Supreme Court released another decision that same day entitled West Virginia v. The Environmental Protection Agency. The case questioned the breadth of authority the Environmental Protection Agency (EPA) has over setting limits on existing power plants to lower emissions.
On January 1, 1970, President Richard Nixon signed the National Environmental Policy Act (NEPA) into law. Only six months later, Nixon proposed federal recognition for the EPA, establishing the agency only 90 days before it went into effect. By the end of the year, the Clean Air Act (CAA) was its premier enactment. Under this act, the EPA has the authority to identify the largest sources of emissions and establish a plan to most efficiently reduce the amount of emissions produced. In accordance with the act, the Obama administration launched the Clean Power Plan (CPP) in 2015. The plan, known as generational shifting, aimed to transition from high-emission sources, such as coal, to safer and lower-emission sources, such as solar and air. The goal was to lower the 2005 emission levels by 32% by 2030. Despite the CPP never being put into law, the emissions goal was already met by the time West Virginia reached the Court. Going against governmental urging to not hear arguments on the case, the Supreme Court ended up doing just that on February 28, 2022.
With Chief Justice John Roberts holding the pen and Justices Alito and Gorsuch concurring, the Court’s republican supermajority voted 6-3 to limit the EPA’s authority to establish the CPP. In what the Court referred to as a “special case” that raised a “major question,” it argued that the EPA would need congressional authorization to enact this particular policy. The CAA grants the EPA the authority to establish the most efficient system for emission reductions. However, the Justices found the language of the act unclear.
Chief Justice Roberts argued that a policy requiring individual power plants to follow the regulations of the CPP rather than a policy that incentivized generational shifting was “unprecedented.” Furthermore, the policy also had implications that affected national policies. Without having the proper expertise to handle a policy with such broad scope, Congress would not have expected the EPA to hold such power.
In their dissent, Justice Kagan, along with Justices Breyer and Sotomayor, argued that Congress gave the EPA broad power to enact a policy for emission reduction for this exact reason. She also argued that the word “systems” encompassed techniques to curb emissions, including generational shifting. Finally, she criticized the majority in using the major questions doctrine in a case of this class, when the use of authority fell well inside the agency’s jurisdiction.
The major questions doctrine states that “courts should not defer to agency statutory interpretations that concern the questions of ‘vast economic or political significance.’” In the West Virginia case, the majority argued that the agency’s breadth of authority was not enough to justify the enactment of a policy that had implications on many other sectors. The use of the doctrine in this case sets a dangerous precedent for not only further environmental cases that may reach the bench, but for any future cases. While the number of cases presented to the Court regarding the EPA are slim, with the body only reviewing 60 per term, the use of this doctrine on such a defining and powerful case doesn’t bode well for any future environmental cases. The ambiguity in when to use such doctrine was likely intentional, where the Court only uses it when it achieves the deregulation the majority supports.
West Virginia represented a setback for the EPA to not only reduce emissions but to also take a step in the right direction in regards to the climate crisis like many other countries. However, not all hope is lost. Although the Court rejected the CPP, the EPA still must establish a plan to regulate greenhouse gas pollution from the power sector. This “best system of emission reduction” can no longer require generational shifting to transition to clean energy. Additionally, many other policies of the CAA remained untouched, most notably the EPA retaining the authority to regulate greenhouse gas emissions from new power plants. The emissions from cars, natural gas plants, and the entire section of public health rules also remained intact — leaving space for the EPA to push for enforcement and reinvigoration of these policies.
Most importantly, the EPA must create and establish new rules for the “best system of emission reduction” as they did with the CPP. Direct regulation of greenhouse gas emissions from existing plants is one tool, focusing solely on gasses such as carbon dioxide and methane. The creation of new power plants is another. In West Virginia, the Court ruled to only limit the EPA’s authority on existing plants. By creating new ones, the agency can design them in ways that produce less emissions as well as set standards to limit emissions amounts.
According to a wide range of climate studies, the world could be anywhere from 2 to 7 degrees Celsius warmer than it is today by the year 2100. The main cause of this increase would be the increased amount of greenhouse gasses trapping heat within our atmosphere. Additionally, because of rising global temperatures, ice caps at the poles will begin to melt much faster, raising current sea levels by an estimated 2 meters by 2100. The amount of land lost by the sea level increase could be equivalent to the areas of France, Germany, Spain and Britain combined. One author called a sea level rise of this magnitude would cause “profound consequences for humanity” –– an estimated 180 million people will be displaced from their homes.
The United States Supreme Court ruling in West Virginia v. The Environmental Protection Agency shows how the new majority can damage the climate for decades to come. By claiming that agency policies are “vague and unclear,” as well as using a doctrine that blatantly enables them to achieve the deregulation they favor, the six majority justices on the Court have near-unlimited power in determining how this country will tackle the climate crisis. It is safe to say that the current bench of the Supreme Court is an existential threat to the future of our planet in regards to climate change.
Sources
Kieth, Katie. “Unpacking West Virginia v. EPA and Its Impact on Health Policy.” O’Neill, 13 July 2022, https://oneill.law.georgetown.edu/unpacking-west-virginia-v-epa-and-its-impact-on-health-policy/.
Lamdan, Sarah. “Major Questions Doctrine.” Public Institutions: Administrative Law Cases & Materials : Major Questions Doctrine | H2O, https://opencasebook.org/casebooks/1045-public-institutions-administrative-law-cases-materials/ resources/4.2.4.1-major-questions-doctrine/#:~:text=The%20%E2%80%9Cmajor%20questions %20doctrine%E2%80%9D%20holds,with%20the%20non%2Ddelegation%20doctrine.
Roberts, Chief Justice John. “Supreme Court of the United States.” United States Supreme Court, 30 June 2022, https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf.
Staff, Science X. “2-Metre Sea Level Rise ‘Plausible’ by 2100: Study.” Phys.org, Phys.org, 21 May 2019, https://phys.org/news/2019-05-metre-sea-plausible.html.
“West Virginia v. EPA.” Legal Information Institute, Cornell School of Law, https://www.law.cornell.edu/supremecourt/text/20-1530f .
“What Does the Supreme Court’s Decision in West Virginia v. EPA Mean for U.S. Action on Climate?” Council on Foreign Relations, Council on Foreign Relations, 19 July 2022, https://www.cfr.org/blog/what-does-supreme-courts-decision-west-virginia-v-epa-mean-us-action -climate.