Climate Change Action May Depend on Supreme Court

The state of West Virginia and others are challenging the EPA’s authority under the Clean Air Act to regulate the greenhouse gas carbon dioxide. Above, the John Amos Power Plant in Winfield, West Virginia. Photo: Tikilucas, Wikimedia Commons (CC BY-SA 4.0).

Backgrounder: Climate Change Action May Depend on Supreme Court

By Joseph A. Davis

An uproar is about to greet the Supreme Court. No, not the one already underway over Roe v. Wade but rather the one coming over climate change. And environmental journalists should be ready for the battle.

The Trump-flavored Supreme Court may soon hamstring the U.S. Environmental Protection Agency’s ability to regulate greenhouse gas emissions. The case before it is West Virginia v. EPA. The consequences could be huge.

The EPA and other federal agencies have been trying to rein in human emissions that cause climate change for many years. The key legal authority available to the EPA for doing so is the Clean Air Act.

How do we know this? Because the Supreme Court said so in 2007. Now it may be prepared to say something quite different.

 

Precedents at stake

In recent years, we have become accustomed to hearing Supreme Court nominees testify piously (and under oath) about their reverence for legal precedent — the legal doctrine known as stare decisis. It means letting stand the decisions that have already been decided.

That doctrine is now clearly at stake in the Dobbs v. Jackson Women’s Health Organization case, in which the court is apparently ready to overturn Roe’s 50-year-old precedent, even after several justices told the senators confirming them that they considered Roe “settled law.”

 

The court is reconsidering a 2007 ruling

that Congress gave the EPA authority to

regulate greenhouse gas emissions.

 

A similar precedent is at stake in West Virginia v. EPA, in which the court is reconsidering a 2007 ruling that Congress gave the EPA authority to regulate greenhouse gas emissions under a specific section of the Clean Air Act. The case is due to be decided by the end of the court’s current term in October 2022.

Meanwhile, the EPA has gone forward on the strength of the 2007 decision with its efforts to address climate change. That — in itself — is a long and winding tale. During all the time since 2007, the EPA’s authority to do so has rarely been seriously questioned. Until now.

 

Crunch time on climate change

The West Virginia v. EPA case comes at a critical moment.

The Supreme Court agreed on Oct. 29, 2021, to hear it — just days before the start of the United Nation’s COP26 climate change conference in Glasgow. The Biden administration came to that conference hoping to reassert U.S. leadership in international climate action and to inspire other nations to raise their “ambition” by raising its own.

The EPA had urged the Court not to review the appellate court’s decision, so when it agreed to, the U.S. negotiators went to Glasgow in a shaky position.

The court also took up the case amid the release of the three key parts of the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, released in an eight-month period between August 2021 and April 2022.

The sweeping summation of scientific opinion offered the most alarming assessment to date of pending climate harms and the most urgent calls for action to date. It was called the “now or never” report.

And the Supreme Court took up the case when the Democrat-led government was itself struggling unsuccessfully with climate legislation.

Biden had come to office promising bold climate action, but a closely divided Congress and a 50-50 Senate had left the Democrats stymied, with Biden’s “Build Back Better” plan wilting under Sen. Joe Manchin’s (D-W.Va.) prevarication.

Legislative change, it seemed, was off the table, and Biden’s team was left with only its existing executive powers — powers which, it seems, the Supreme Court is poised to diminish.

 

What the Clean Air Act says

While the Clean Air Act, in its landmark 1970 version, names certain pollutants for the EPA to regulate, it also gives the agency authority to declare other pollutants that need regulation.

To exercise this authority, the EPA administrator must identify “emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”

At the time when Massachusetts v. EPA began in 2003, the George W. Bush administration was in power, and the EPA did not want to regulate greenhouse gas emissions. In fact, the EPA had denied a petition to do so from Massachusetts and 11 other states, which were joined by environmental groups.

Massachusetts and the others went to court appealing the EPA’s decision. Eventually, the Supreme Court decided the case, 5-4 vote, for Massachusetts.

 

In an earlier case, the court found that

EPA was not merely authorized to regulate

greenhouse gasses, but that it is required to

if it finds that they endanger health or welfare.

 

The decision was a big deal. The court found that EPA was not merely authorized to regulate greenhouse gasses, but that it is required to if it finds that they endanger health or welfare.

The majority opinion was written by then-Justice John Paul Stevens. Chief Justice John G. Roberts wrote the main dissent, arguing among other things that Massachusetts lacked standing to sue because its claimed harm (from sea level rise) was speculative.

 

Bush, Obama back and forth

The Bush administration left office without further action on climate — not finding that greenhouse gas emissions harmed public health or welfare.

But the incoming Obama EPA, in 2009, promptly issued the requisite “endangerment finding,” which triggered climate regulations. It found that six gasses (carbon dioxide being just one) endangered both health and welfare.

The 2009 endangerment finding kicked off a subsequent legal conflict over how to regulate those greenhouse gasses, most importantly carbon dioxide from electric power plants and vehicle exhaust.

The Obama EPA ultimately issued its Clean Power Plan in 2014-2015, but it was promptly blocked in court. The Trump EPA rescinded it and issued its own Affordable Clean Energy plan in 2018. That too was eventually struck down by the courts in 2021.

During all that time, the EPA’s authority to regulate climate under the Clean Air Act and the EPA’s underlying endangerment finding were never successfully challenged in court.

Now that could change.

 

What’s at stake in West Virginia v. EPA

West Virginia and other parties are now challenging the EPA’s authority under the Clean Air Act to regulate carbon dioxide from power plants altogether. A negative decision by the court’s newly bolstered conservative majority could leave the EPA virtually powerless to regulate climate change.

What is at issue in West Virginia v. EPA is not the act’s “endangerment” language, but a more obscure and ambiguous provision in a section defining the EPA’s duty to set performance standards for existing stationary sources (i.e., power plants).

West Virginia, of course, is a coal state — and coal, as the fuel that emits the most carbon dioxide, has been the major antagonist of climate action. The state originally filed suit against the EPA over the Obama Clean Power Plan back in 2015.

Ultimately, West Virginia was joined in this litigation by 27 other states, most of them Republican-led and fossil-friendly. These states included many from the Republican Attorneys General Association that Trump EPA Administrator Scott Pruitt had led. Many had an anti-regulatory bent.

They were eventually joined in the lawsuit by North Dakota, two major coal corporations and hundreds of other companies — all consolidated into the West Virginia. v. EPA case.

As of today, the Biden EPA has still not issued a major power plant climate change rule, although it intends to. The action has been held in abeyance pending the Supreme Court decision.

The court heard arguments in the case on Feb. 28, 2022. You can find the transcript and audio of the arguments here.

 

Broader regulatory powers in question

The lawyers in the case argued a lot over the so-called “major questions” doctrine, which holds that in order to decide an issue of major national significance, an agency action must be supported by clear statutory authorization.

 

One key consideration is that if the court

relies on this doctrine in West Virginia v. EPA,

it would strengthen a stance that restricts the

regulatory powers of any federal agency.

 

It gets more complicated. But one key consideration is that if the court relies on this doctrine in West Virginia v. EPA, it would strengthen a stance that restricts the regulatory powers of any federal agency.

So the impact of such a Court decision could carry over to many other environmental cases before the Court (e.g., the “Waters of the United States” case interpreting the Clean Water Act).

A decision in West Virginia v. EPA is expected this summer.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online’s TipSheet, Reporter’s Toolbox and Issue Backgrounder, and curates SEJ’s weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ’s Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 7, No. 20. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.