The Washington PostDemocracy Dies in Darkness
The Climate 202

The Supreme Court will hear cases that could undercut Biden's climate agenda. Here's what to know.

The Climate 202

Placeholder while article actions load

Good morning and welcome to The Climate 202! 🚨The White House this morning authorized a release from the Strategic Petroleum Reserve amid high gas prices. More on that below. But first: 

The Supreme Court will hear challenges to the EPA's climate authority. Here's what to know.

In our crowded news cycle, it can be easy to miss key developments related to climate policy. So you would be forgiven for missing that the Supreme Court last month agreed to hear cases challenging the Environmental Protection Agency's authority to limit greenhouse gas emissions from power plants.

But environmental lawyers say you should be paying attention to the pending cases, which could threaten a key plank of President Biden's climate agenda.

“This is potentially a very big deal,” Jeffrey Holmstead, a lawyer who ran the EPA’s Office of Air and Radiation under President George W. Bush, told The Climate 202.

Jonathan Adler, a professor at Case Western Reserve University School of Law, said the cases could offer an early test of the willingness of the Supreme Court's six conservative justices to step in to block Biden's climate plans. “It is definitely a big test,” Adler told The Climate 202.

The Supreme Court said Oct. 29 that it would hear the cases in response to requests from Republican-led states and the coal industry.

  • The requests were spearheaded by two Republican attorneys general — Patrick Morrisey of West Virginia and Wayne Stenehjem of North Dakota — as well as North American Coal and Westmoreland Mining.
  • The states and companies specifically asked the court to determine whether the EPA can issue sweeping climate regulations for the power sector under the Clean Air Act, which directs the agency to consider the “best system of emission reduction” for existing coal plants.
A long legal saga

The debate over the EPA's Clean Air Act authority has inspired a years-long legal struggle spanning multiple Democratic and Republican administrations. Here's a quick overview:

  • In 2015, President Barack Obama unveiled the Clean Power Plan, which took an expansive view of the agency's authority under the law. The Obama administration found the “best system of emission reduction” included shifting from coal to cleaner-burning natural gas or renewable energy.
  • But in 2016, the Supreme Court put the Clean Power Plan on hold before it could take effect — and before litigation in a lower court could play out.
  • In 2019, President Donald Trump issued the Affordable Clean Energy (ACE) rule, which took a much narrower view of the EPA's Clean Air Act authority. The Trump administration found the “best system of emission reduction” only consisted of changes at individual power plants — an approach known as “inside the fence line.”
  • But on the final day of the Trump administration, the U.S. Court of Appeals for the District of Columbia Circuit tossed out the ACE rule.

In their requests, the red states and coal companies had urged the Supreme Court to overturn the D.C. Circuit's ruling. But Biden's solicitor general, Elizabeth B. Prelogar, had told the court it was premature to get involved.

Reading the tea leaves from conservative justices

There are signs that four of the Supreme Court's six conservative justices might want to curtail the EPA's authority to regulate power plant emissions beyond the fence line, environmental lawyers say.

  • Chief Justice John G. Roberts Jr., as well as Justices Samuel A. Alito Jr. and Clarence Thomas, were all on the high court when it took the unprecedented step of staying the Clean Power Plan.
  • Justice Brett M. Kavanaugh also appeared skeptical of the Clean Power Plan during oral arguments in 2016, when he was a judge on the D.C. Circuit.

Richard Lazarus, a professor of environmental law at Harvard University, told The Climate 202 that the newest justice, Amy Coney Barrett, is a wild card. But the other members of the court's conservative wing have telegraphed their thoughts on the matter.

“A significant number of justices, if not a majority, are going to be skeptical of the Clean Power Plan” and anything the Biden administration proposes beyond the fence line, Lazarus said.

Still, the Biden administration could propose some creative approaches inside the fence line, such as deploying more carbon capture and storage, he added.

Regan forges ahead with new rule

Meanwhile, EPA Administrator Michael Regan has promised an aggressive approach to cutting electricity sector emissions, which account for about one-quarter of the country's greenhouse gases, second only to the transportation sector.

Regan told The Climate 202 last month that the agency was striving to craft a new greenhouse gas standard for power plants that would survive anticipated legal challenges. He said EPA lawyers had “looked very closely at what has worked and what the courts would not accept.”

Nick Conger, an EPA spokesman, also confirmed to The Climate 202 yesterday that the agency is still working to craft the major new climate regulation, regardless of the looming Supreme Court showdown.

“EPA has been working on new greenhouse gas emissions standards for the power sector since before this SCOTUS announcement,” Conger said, “and we continue to do so.”

On the Hill

Democrats express confidence about methane fee

Top Democrats say they are confident that a proposed fee on methane emissions will be included in the final version of a sweeping social and climate spending bill, despite opposition from the oil and gas industry and criticism from Sen. Joe Manchin III (D-W.Va.), the Associated Press' Matthew Daly reports.

House Energy and Commerce Chairman Frank Pallone Jr. (D-N.J.), who has been working with senators including Manchin, told reporters Friday that the substantive language in the bill is “pretty solid at this point.” Senate Environment and Public Works Committee Chairman Thomas R. Carper (D-Del.) has also expressed optimism about the methane fee's inclusion.

The methane fee was in the version of the Build Back Better Act that the House passed on Friday, but the legislation is subject to change in the Senate, where Manchin has voiced concern that it could harm natural gas companies.

Pressure points

Biden taps Powell for second term as Fed chair, Brainard for vice chair

The president yesterday nominated Jerome H. Powell to lead the Federal Reserve for a second four-year term. He also tapped Lael Brainard as vice chair, the No. 2 position at the central bank. If confirmed by the Senate, the pair will lead the Fed together, despite their different records on climate change, The Washington Post's Rachel Siegel and Jeff Stein report.

Some liberals have criticized Powell for not being aggressive enough on climate issues during his tenure. By contrast, Brainard has been vocal about the fact that climate change can hinder economic activity. She has also warned that big banks' exposure to climate-related risks could threaten the U.S. financial system.

White House taps Strategic Petroleum Reserve to combat high gas prices

White House officials said Tuesday morning that the Department of Energy would release 50 million barrels of oil from the Strategic Petroleum Reserve, as Republicans slam Biden for high gas prices ahead of the Thanksgiving holiday, our colleague Jeff Stein reports.

While energy experts have said solely releasing U.S. reserves would do little to lower gas prices, the White House said similar efforts would be undertaken by China, India, Japan, the Republic of Korea and the United Kingdom.

"American consumers are feeling the impact of elevated gas prices at the pump and in their home heating bills, and American businesses are, too, because oil supply has not kept up with demand as the global economy emerges from the pandemic,” the White House said in a statement. “That’s why President Biden is using every tool available to him to work to lower prices and address the lack of supply.”

Biden is sending a tricky message on energy

In the face of soaring energy prices, the president is promising to boost the supply of affordable gas and oil in the short term, even as his climate agenda hinges on ending their use in the long term, The Post’s Annie Linskey reports.

At the COP26 climate conference in Scotland three weeks ago, Biden called global warming a “threat to human existence as we know it." But amid an energy crunch at home, Biden is now authorizing a release from the Strategic Petroleum Reserve, pushing the Federal Trade Commission to investigate rising gas prices and urging oil-producing countries to increase their output. 

Extreme events

Climate change is fueling a water rights conflict in the Klamath River Basin

For more than 100 years, the federal government has parceled out water in the Klamath River Basin, which straddles the border of California and Oregon and is home to about 124,000 people. But there's no longer enough water to meet the needs of area residents and wildlife, as the region experiences one of the worst droughts ever recorded, The Post's Nick Kirkpatrick, Laris Karklis, James Cornsilk, Mason Trinca and Alice Li report.

The effects of the climate-fueled drought are intensifying a long-running conflict among Native American tribes, farmers and ranchers over a resource essential to their ways of life — and their very survival.

Agency alert

A new wastewater rule may propel the closure of coal-fired power plants

The expense of complying with stricter regulations on wastewater pollution is forcing the shutdown of coal-fired power plants, Michael Rubinkam of the Associated Press reports

The rule, which requires power plants to clean coal ash and toxic heavy metals from wastewater before it is dumped into streams, is expected to affect 75 coal-powered plants nationwide, according to the EPA. At least 26 of those plants say they will stop burning coal and 21 plan to shut down, according to the Sierra Club, which has been tracking regulatory filings.


Jacob Collier, a Grammy Award-winning British musician, sang the song “The Sun Is In Your Eyes" on his rooftop, where he recently installed solar panels. 

Thanks for reading!