The Supreme Court’s ruling Thursday limiting the Environmental Protection Agency’s ability to regulate carbon emissions could have far-reaching consequences, according to legal experts, which could curb President Biden’s ambitious plans to tackle climate change along with air and water pollution.
The outcome of those cases could determine whether the fight over U.S. environmental policy shifts decisively to the states, where some will weaken protections as others continue to pursue strict limits on greenhouse gas emissions and other forms of pollution.
“West Virginia may end up being part of a pattern of cases where this conservative Supreme Court generally cuts back on federal regulatory power to attack new problems,” said William Buzbee, faculty director of Georgetown University Law Center’s environmental law and policy program.
“Of course, states can go above and beyond what federal laws require,” he added. “Many states do. But a lot of states don’t.”
In its fall term beginning in October, the Supreme Court will take up a challenge to the Clean Water Act that could narrow the law’s reach in ways long sought by businesses and developers. In lower courts, meanwhile, Republican attorneys general are fighting to prevent the Biden administration from factoring climate change into major decisions and cutting climate pollutants from vehicles’ tailpipes.
In the majority opinion in West Virginia, Chief Justice John G. Roberts Jr. wrote that the EPA can only make sweeping changes to the nation’s power sector with explicit approval from Congress. But lawmakers have not granted that to the agency, given partisan divisions over environmental issues in the past few decades.
The EPA “must point to ‘clear congressional authorization’ for the power it claims,” Roberts wrote in the majority opinion, which was joined by Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Katie Tubb, a research fellow at the Heritage Foundation, a conservative think tank, said the court was right to restrict the EPA’s powers.
“Many on the left want the EPA to regulate emissions to achieve a radical climate agenda,” Tubb said. “But it matters in this country who makes those decisions. From my perspective, it is important that American representatives are the ones … rather than unelected bureaucrats in the EPA.”
Jody Freeman, a Harvard Law School professor, said the court could have gone further in limiting the EPA’s authority. The majority allowed the agency to continue regulating carbon emissions from power plants — it just cannot do so by forcing utility companies to shift from coal to renewable energy.
There is “something of a silver lining here,” Freeman said. “It leaves a pathway for EPA to still set meaningful standards.”
However, the West Virginia ruling may not bode well for the Biden administration in the challenge to the Clean Water Act scheduled for this fall, legal scholars say. In that case, Sackett v. EPA, the conservative justices could also find that the EPA overstepped its authority when regulating the nation’s wetlands and waterways, despite a lack of clear guidance from Congress.
“The court had a strong message for EPA not to read its authority overly broadly,” said Dan Farber, a law professor at the University of California at Berkeley. “And that will certainly be very unhelpful in terms of Sackett.”
The Clean Water Act case is a long-running dispute involving an Idaho couple, Chantell and Mike Sackett, who tried to build a home on their land near Priest Lake. The couple has said their plans were prevented by an EPA order, which determined that the property contained a wetland and they needed a federal permit.
The case raises the question of what constitutes “waters of the United States,” which the Clean Water Act was passed to protect in 1972. The Sacketts favor a narrower definition proposed by the late Justice Antonin Scalia and championed by business groups such as the U.S. Chamber of Commerce. If they prevail, by some estimates, 90 percent of federally regulated waterways in America would lose protections.
“Over the last 30 to 40 years, the Clean Water Act has developed into something much more than a basic water quality program,” said Damien Schiff, a senior attorney at the Pacific Legal Foundation, which is representing the Sacketts. “In practice, it has become something like a mini federal zoning code.”
Meanwhile, Republican attorneys general are pushing to prevent Biden from raising a key metric that accounts for the real-world costs of climate change. This metric, called the social cost of carbon, applies to consequential decisions affecting fossil fuel extraction on public lands, infrastructure projects and even international climate negotiations.
The Supreme Court in May allowed the Biden administration, for now, to continue considering the societal costs of climate change as it writes new regulations and strengthens existing ones. But there is still a chance that lower courts could thwart its use as the legal battle presses forward.
“The social cost of carbon litigation — and in particular the states’ willingness to take this all the way to the Supreme Court — signals that there are groups that are really willing to press aggressive, often novel legal arguments to challenge the Biden administration’s actions to address climate change,” said Kirti Datla, director of strategic legal advocacy for Earthjustice, an environmental law firm.
Conservative politicians have also challenged Biden’s efforts to curb emissions from cars and light trucks, a major source of greenhouse gases. Led by Texas Attorney General Ken Paxton (R), a coalition of 15 Republican-led states have sued over the administration’s final rule to slash tailpipe emissions, which would keep billions of tons of carbon dioxide from entering the atmosphere. The litigation is pending in the Court of Appeals for the D.C. Circuit, one of the most important federal courts for environmental policy.
While the courts could constrain the federal government’s ability to cut pollution from power plants, some states are forging ahead with clean energy requirements even as other states are casting them aside.
About 4 in 10 Americans live in a state, city or territory that has committed to reaching 100 percent clean electricity by 2050 at the latest, according to an analysis by the League of Conservation Voters, an advocacy group. And 24 governors have pledged to cut greenhouse gas emissions in half by 2030 and to reach net-zero emissions by 2050, according to the U.S. Climate Alliance, a bipartisan coalition of governors committed to upholding the goals of the Paris climate accord.
In Oregon, Gov. Kate Brown (D) signed one of the nation’s most aggressive clean energy plans into law last year. The plan requires the state’s largest utilities to reduce greenhouse gas emissions 80 percent by 2030, 90 percent by 2045 and 100 percent by 2040. That timeline is similar to Biden’s goal of eliminating emissions from the nation’s electricity sector by 2035.
“Regardless of what the U.S. Supreme Court decides, we are going to continue to move forward because we are seeing the impacts of climate change every single day,” Brown said in an interview, citing the state’s vulnerability to deadly wildfires, blistering heat waves and severe drought fueled by rising global temperatures.
In Connecticut, Gov. Ned Lamont (D) last month signed into law a goal of achieving a zero-carbon electric grid by 2040. The measure came after Connecticut’s last coal-fired power plant went offline, ending a 53-year run, as it struggled to compete with cheaper natural gas and renewable energy.
“Investing in a clean, resilient electric grid is something that’s long been a priority for Connecticut, like many states, because of the enormous benefits — the jobs and economic development that come with investing in home-grown clean energy, cleaner air and better health for our kids and families, and better protection from the extreme weather and volatile price swings that come with fossil fuel dependence,” Lamont said in a statement.
Under the leadership of Gov. Glenn Youngkin, a Republican, Virginia has headed in the opposite direction. Youngkin has announced plans to withdraw the state from the Regional Greenhouse Gas Initiative, an effort to cut carbon emissions from the power sector in the Northeast and Mid-Atlantic, calling it a “bad deal” for consumers.
Republican lawmakers in Pennsylvania have similarly tried to prevent Democratic Gov. Tom Wolf from entering the group. The issue will be decided in November, when voters will elect a new Pennsylvania governor for the first time in eight years. GOP nominee Doug Mastriano has warned that the program would decimate jobs in the energy industry.
Meanwhile in Nebraska — a red state that Donald Trump carried with 58.7 percent of the vote in the 2016 presidential election — the three public utilities have all committed to reaching net-zero emissions by 2050 at the latest.
The decision was largely spurred by corporate demand for clean power. Large companies such as Facebook have located data centers in Nebraska, the third-windiest state in the country, in the hopes of meeting their commitments to using 100 percent renewable energy.
“The market is moving toward clean energy regardless of what happens with the Supreme Court decision,” said Chelsea Johnson, deputy director of Nebraska Conservation Voters. “Federal regulation can help, but it’s not the end-all-be-all, especially when the economics make so much sense even without the regulation.”