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The Supreme Court's EPA ruling was the beginning of something bigger

The Climate 202

Good morning and welcome to The Climate 202! Today we can relate to our colleague Tony Romm feeling “both very tired and very wired from too much caffeine.” ☕ But first:

The Supreme Court's EPA ruling was just the beginning for Republican attorneys general

When the Supreme Court limited the Environmental Protection Agency's power to combat climate change last week, Republican attorneys general and conservative legal activists cheered the ruling.

In particular, they celebrated the court's embrace of the “major questions doctrine,” a conservative legal idea that says federal agencies need explicit authorization from Congress to decide issues of “major economic and political significance.”

However, their celebration didn't last long before they began plotting ways to challenge other environmental regulations on similar grounds, setting up a larger legal showdown over the federal government's ability to address the climate crisis.

The rules in their crosshairs include the Securities and Exchange Commission's landmark proposal to require all publicly traded companies to disclose their greenhouse gas emissions, as well as the EPA's tailpipe emissions standards for new cars and light trucks.

“The Biden administration is trying to transform all these agencies and turn them into an environmental regulator,” West Virginia Attorney General Patrick Morrisey (R), who led the legal challenge to the EPA's climate authority, said at a news conference last week.

“West Virginia is ready for President Biden’s workarounds,” Morrisey said. “We took them all the way up to the Supreme Court and we beat them this time. And we are prepared to do it again, again and again.”

The ‘anti-regulatory arsenal’

The major questions doctrine is relatively new. But in the past year, the Supreme Court's conservative majority has invoked the idea to strike down a national moratorium on evictions imposed by the Centers for Disease Control and Prevention, as well as the Biden administration's vaccination-or-testing requirement for the nation’s largest employers.

In the majority opinion in West Virginia v. EPA last week, Chief Justice John G. Roberts Jr. wrote that “it is not plausible that Congress gave EPA the authority” to make sweeping changes to the nation's power sector.

“The major questions doctrine didn't exist until fairly recently, but in the last year or so, the Supreme Court has made it a regular part of its anti-regulatory arsenal,” Richard Revesz, director of the Institute for Policy Integrity at NYU School of Law, told The Climate 202.

“As a result, I am sure that enterprising attorneys general for red states will use it to challenge climate regulations, environmental regulations and all kinds of other regulations,” Revesz said.

The SEC's climate disclosure rule

Morrisey has made clear that he plans to challenge the SEC's climate proposal once the commission finalizes it.

“West Virginia will vigorously participate in the rulemaking process, and, if necessary, will go to court to defend against any regulatory overreach by the SEC in the name of climate disclosures,” he said in a June statement.

David Burton, a senior fellow at the Heritage Foundation, a conservative think tank, said he is confident that the SEC rule “will go down in a courtroom.”

“The SEC is pursuing an environmental objective, not a securities law objective,” Burton told The Climate 202. “I would say that counts as a major question, given how far outside of their lane this is.”

Revesz disagreed. He noted that the SEC is merely asking companies to disclose their emissions to investors — the commission is not regulating those emissions.

“The disclosure of things that put investors at risk is at the core of what the SEC has done throughout its history,” Revesz said. (More on the SEC proposal below.)

Clean car standards, FERC

Scott Segal, a partner at the law and lobbying firm Bracewell, said the major questions doctrine could also imperil the EPA's emissions standards for new cars and light trucks.

“If the EPA could be shown to be mandating [electric vehicles] or phasing out internal combustion engines, that sure sounds like it might be a major question to me,” Segal said in an email.

But Amy Turner, a senior fellow at the Sabin Center for Climate Change Law at Columbia Law School, said the EPA has an obligation to limit tailpipe emissions under Massachusetts v. EPA, the 2007 Supreme Court case that established the agency's authority to regulate greenhouse gases as pollutants.

Massachusetts still stands, so some level of regulation has to be allowable by the courts,” Turner told The Climate 202.

Meanwhile, the Federal Energy Regulatory Commission could run afoul of the major questions doctrine if it began rejecting natural gas pipelines because of their emissions, according to Republican Commissioner Mark Christie

“Rejecting a needed pipeline for that reason is clearly a major policy question and only Congress can give us that authority, but they have not,” Christie said in an email.

FERC in February said it would consider how pipelines and other gas projects affect climate change. But the commission backtracked in March following intense backlash from fossil fuel industry groups, Republican lawmakers and Sen. Joe Manchin III (D-W.Va.).

Climate in the courts

Court tosses Trump-era changes to Endangered Species Act

A federal judge in California on Tuesday overturned a Trump administration move to weaken the Endangered Species Act, restoring federal protections for hundreds of species, Katy Stech Ferek reports for the Wall Street Journal. 

The ruling by U.S. District Judge Jon S. Tigar nixes President Donald Trump's overhaul of how the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration decide whether to list a species as threatened or endangered.

The 2019 changes allowed the agencies to consider economic factors when weighing whether to list a species. They also stripped protections for species threatened by predicted future events, including the effects of climate change.

Several environmental groups sued the Biden administration over the changes. While the Biden administration last year vowed to review and potentially reverse the changes, some environmentalists said it was acting too slowly.

“Threatened and endangered species do not have the luxury of waiting under rules that do not protect them,” said Kristen Boyles, an attorney at Earthjustice, one of the groups that brought the lawsuit.

Extreme events

Central, Southwestern states to swelter under heat dome

More than 60 million Americans were placed under heat advisories and excessive-heat warnings on Tuesday, as a heat dome expands above the Midwest and Plains, with forecasts saying it will shift westward in the coming days, Matthew Cappucci reports for The Washington Post. 

Temperatures were 10 to 15 degrees above normal on Tuesday between northern Louisiana and southern Minnesota and Wisconsin, with highs in the 90s and triple digits. Although records won’t be broken in most cities, the combination of elevated temperatures and oppressive humidity poses a threat to vulnerable populations without access to air conditioning. 

The new weather pattern comes after a relentless heat wave from May to late June brought above-average temperatures to much of the nation, with higher nighttime temperatures offering little relief.

International climate

European lawmakers say gas and nuclear are 'green'

European lawmakers on Wednesday voted to classify some natural gas and nuclear projects as "green," allowing them to receive cheap loans and even state subsidies, in a controversial decision that could reverberate around the world, Emily Rauhala and Quentin Ariès write for The Post.

At a European Parliament meeting in Strasbourg, France, 328 lawmakers voted in favor of the proposal by the European Commission, while 278 voted against it. But inside the parliamentary building and outside, opponents of the proposal booed in protest.

Critics contend that the proposal, which could be replicated elsewhere, is a form of "greenwashing." They argue it could undermine the bloc's efforts to cut carbon emissions 55 percent by 2030 and reach carbon neutrality by 2050. 

Natural gas shortages threaten global economy, climate goals

The price of natural gas has risen about 700 percent in Europe since the start of last year, pushing the continent to the brink of recession and complicating countries' climate goals, Gerson Freitas Jr., Stephen Stapczynski and Anna Shiryaevskaya report for Bloomberg News. 

Russia is cutting back on pipeline deliveries to Europe, sending countries scrambling to shore up gas supplies before winter, despite their efforts to transition to renewable energy. Germany has warned that gas shortfalls could trigger an economic collapse, as it stares down the unprecedented prospect of businesses and households running out of power.

The situation could worsen when the Nord Stream 1 pipeline, which carries Russian gas to Germany, temporarily shuts down on July 11 for 10 days of scheduled maintenance, Sam Meredith reports for CNBC. Some European governments fear that Moscow won't resume operations after the work is completed.

Agency alert

Firms clash over who should verify climate data under SEC proposal

Firms that review businesses' climate data are fighting over who is best qualified to help companies comply with the Securities and Exchange Commission's climate disclosure proposal — a potentially lucrative job, Mark Maurer reports for the Wall Street Journal.

The “Big Four” accounting firms — Deloitte, Ernst & Young, KPMG, and PricewaterhouseCoopers — are asking the SEC for more information about who can independently certify companies' disclosures of the greenhouse gas emissions from their operations and energy consumption.

But non-accounting firms already dominate this space, with 47 percent of S&P 500 companies hiring one last year to certify at least some of their environmental, social and governance information, according to the latest available data from the Center for Audit Quality, an accounting industry group. These firms are defending their expertise, citing their employees’ backgrounds in engineering and environmental science. 

The SEC is expected to review public comments and make a decision on the proposed rule in the coming weeks.

In the atmosphere


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