This post originally appeared in Scientific American.
The US Supreme Court is scheduled to hear a case on February 28 that could limit the power of the Environmental Protection Agency to curtail heat-trapping emissions at a time when the clock is ticking on our ability to limit catastrophic climate change.
West Virginia v. Environmental Protection Agency is a challenge being mounted by several states and coal industry interests on how the agency regulates carbon emissions from power plants under the Clean Air Act. Should SCOTUS find in favor of West Virginia, the ruling could severely impede the EPA’s ability to regulate heat-trapping emissions and other forms of toxic pollution. It could also set a precedent in which federal agencies beyond the EPA could be forced to interpret and implement existing laws very narrowly, which would be greatly detrimental to the public interest.
It’s surprising that SCOTUS chose to hear the case, because currently the EPA has no regulation to enforce when it comes to curbing emissions from existing power plants. The 2015 Obama administration Clean Power Plan was repealed by the Trump administration and replaced with a weaker rule that many states successfully challenged and got vacated. The Biden administration EPA has not replaced the rule yet, so the legal basis to challenge a nonexistent regulation is highly questionable and the case should be dismissed.
The EPA’s authority and responsibility to regulate heat-trapping emissions under the Clean Air Act are clearly established in science and law. This is not what the petitioners are directly challenging. The 2007 Supreme Court ruling Massachusetts v. Environmental Protection Agency established that heat-trapping emissions are covered by the Clean Air Act, and the 2009 EPA Endangerment Finding confirmed that these emissions are a threat to public health and the environment. Subsequent court rulings have affirmed EPA’s role repeatedly.
The current case was brought because opponents of climate action are trying to limit the scope of how EPA regulates polluters going forward. A finding in favor of the petitioners could have implications well beyond the power sector, undermining the EPA’s authority on climate change mitigation and public health protections broadly. In this particular case, the petitioners want to limit the EPA’s authority to just narrow changes at a power plant and exclude options for power system–wide changes that would help make deeper, cost-effective reductions in carbon dioxide emissions. Limiting the scope of options also means that states would have less flexibility to meet pollution standards; for example, they might not be able to allow power producers to shift from fossil fuels to renewable electricity sources as one way to meet a power sector carbon standard.
As its contribution to global climate action, the United States has set a goal of cutting its emissions 50 to 52 percent below 2005 levels by 2030. To help meet that goal, the EPA must be able to robustly implement the Clean Air Act, an existing law with bipartisan support that has successfully reduced the environmental and health effects of air pollution. Alongside much-needed new climate policies that Congress should enact, EPA regulations are needed to cut carbon dioxide emissions from the power, transportation and other industrial sectors, as well as methane emissions, which in large part come from the oil and gas sector.
A ruling against the EPA could also limit its ability to factor in the latest climate science as it makes decisions about strengthening future standards. The latest data describing climate change have only become clearer, their scientific interpretation more dire, as underscored in an amicus brief filed by a number of eminent climate scientists. Numerous scientific studies and assessments and observable evidence affirm that climate impacts are already unfolding in deadly and costly ways and that heat waves, wildfires, flooding, extreme rainfall, drought, ocean acidification, sea level rise and much more will worsen considerably if we fail to take action. The science is clear that global heat-trapping emissions must be sharply curtailed within this decade to prevent significantly more catastrophic consequences, including irreversible tipping points such as massive ice sheet loss triggering multicentury sea level rise.
“Attribution science,” which connects climate change to extreme weather events, has also grown much stronger. Recent research shows, for example, that the deadly heat wave in the Pacific Northwest last summer would have been virtually impossible without climate change. And compound climate impacts can trigger grave human consequences such as water shortages, food insecurity and the displacement of large populations. Data also show that low-income communities and communities of color bear a disproportionate and unjust burden from pollution, and also from the impacts of the climate crisis. Rather than hamstringing the EPA, we actually need it to go much further faster.
Beyond climate change, a ruling against the EPA would make the agency less flexible and effective in responding to new pollutants or toxic chemicals. In general, the Supreme Court has usually given deference to federal agencies in how they interpret protective laws such as the Clean Air Act and the Toxic Substances Control Act. This is because Congress wrote these laws broadly to give agencies forward-looking authority. Congress recognized that it could never fully anticipate new forms of harmful pollution or toxics that might emerge in the future, or new public health dangers, or innovative pollution control technologies that might emerge. If the EPA had to go back and wait for Congress to act each time a new air or water pollutant was created by industry, or new scientific evidence of harms from existing pollutants emerged, the process of updating health-based standards would be untenably cumbersome and slow. By seeking to limit the authority Congress appropriately gave agencies, the petitioners in this case have one overriding purpose: tipping the scales in favor of polluters.
Unfortunately, given the Supreme Court’s current makeup, it is unclear whether it will uphold the EPA’s existing authority as envisioned by Congress. Its recent ruling overturning a federal COVID-19 vaccine mandate for large companies revealed a court unwilling to uphold the authority of the Occupational Safety and Health Administration to issue science-based guidance, despite clear evidence of its lifesaving value in the midst of a global pandemic.
That reality makes the dysfunctional partisan politics that pervade Congress today all the more troubling and infuriating. With the Build Back Better Act stalled in Congress, and this latest worrisome development on the legal front, anyone who feels the urgency of this consequential decade for climate action must be deeply concerned. The solutions are well within reach—and yet they have repeatedly slipped from our grasp because of the outsized power of the fossil fuel industry and its allies, and their well-funded assaults on policy progress.
So much is at stake, including the future we leave to our children and grandchildren; let’s hope the Supreme Court finds its way to being on the right side of history in deciding this consequential case.