At the very end of its dismal term, on June 30, the U.S. Supreme Court issued a ruling that took away the Environmental Protection Agency‘s best – but not only – tool for responding to climate change. The legal action brought by the state of West Virginia – a stand-in for all fossil fuel-producing states – successfully challenged requirements under the Clean Power Plan adopted by the Obama administration to shift electric generation away from fossil fuel and toward renewables.
Those regulations were “the most efficient, effective, and lowest-cost way of achieving large quantities of CO2 reductions from the electric power sector,” explains Andres Restrepo, a Sierra Club attorney on the case. “That’s the way that utilities have always gone as far as reducing emissions from their generation portfolios. With that option off the table, it’s just going to be difficult to achieve the same level of curtailment of greenhouse gases. But it doesn’t take everything off the table by any means.”
The tools remaining in the EPA toolbox include carbon capture and sequestration at gas plants, efficiency improvements, equipment upgrades, and the Clean Air Act‘s requirement that new energy sources be implemented with the best available emissions controls. Also, there are “certainly other sectors of the economy that are not directly affected by this lawsuit, such as vehicle greenhouse gas emissions or methane emissions from the oil and gas sector, which is something that affects Texas,” continues Restrepo. “Texas does deserve credit for all the wind that it’s already been capturing, but it is not doing nearly enough to promote [the switch to renewables]. Federal regulations help incentivize the market in a place like Texas to adopt those resources; that’s why this decision has less importance for people in states that are already benefiting from the transition to renewable energy more. I do think it’s a setback [for Texas].”
However, Restrepo says, local control is not affected by the ruling – “It’s not like because of this ruling, the coal and gas plants in Texas are suddenly able to pollute more today than they did last week before the decision.” Austin Energy‘s Resource, Generation and Climate Protection Plan to 2030, which aims for all generation resources to be carbon-free by 2035, was dealt a recent blow by the failure to close the Fayette Power Project coal plant by 2022, which comprises 80% of AE’s emissions and only 15% of its total generating capacity. AE told the Chronicle, “We do not see [the ruling] impacting our generation plan as we are governed at the local level.” State law adopted way back in 1999 requires 10% of the state’s electricity to come from renewables by 2025; it is unclear how West Virginia v. EPA may affect this goal.
The Sierra Club is troubled by how West Virginia uses the conservative court’s “major questions” doctrine – “the clearest exposition of this doctrine that we’ve seen thus far,” says Restrepo. When a federal agency like the EPA plans to issue a regulation with “vast economic and political significance” – as defined by SCOTUS – the court should decide if the statutes authorizing the agency and its programs clearly and unmistakably authorize the action in question.
This doctrine “doesn’t give clear guidance [to a judge]. It doesn’t set any tests. It’s not even clear whether [‘vast significance’] is about the price tag associated with the regulation or if it [refers to] transformation of the agency’s understood traditional authority. This decision will probably give the green light to judges in lower courts, who may be skeptical of agency authority, to strike things down that they might not otherwise have done.” SCOTUS has already used the major questions doctrine to strike down COVID-related health and safety regulations, including the Centers for Disease Control‘s eviction moratorium, the Biden administration‘s proposed vaccine mandate for U.S. workers, and masking requirements on airlines. “This isn’t the end of administrative government, but it is going to be a setback,” says Restrepo.
Going forward, the Sierra Club’s “biggest priority is to see the budget reconciliation bill that’s being negotiated in Congress right now passed, [which] would accord hundreds of millions of dollars to renewable energy and environmental justice communities. We are definitely going to push the EPA to issue power plant standards for existing [and new] sources that are as aggressive as possible, supporting them as they tighten the vehicle greenhouse gas standards and oil and gas methane requirements. We have organizers and advocates and attorneys, communicators, lobbyists, volunteers on the ground in all states working at all levels of government, in the [public utility commission] negotiating with utilities, working with state governments to pass new laws and new regulations. We have not by any means put all of our eggs in the EPA basket.”
This article appears in July 15 • 2022.