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Supreme Court deals climate change fight a major blow in EPA ruling

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The Brunner Island power plant in Pennsylvania

In a blow to the Biden administration’s efforts to address the warming caused by greenhouse gas emissions, the Supreme Court on Thursday ruled that the Environmental Protection Agency does not have the authority to regulate greenhouse gas emissions from existing power plants, a decision aimed at those power plants running on coal.

But the 6-3 decision, authored by Chief Justice John Roberts and issued on the last day of the session, is also likely to have far broader impacts, not only on environmental regulation but also on actions by other federal agencies.

“I read it as having significant effects on statutory interpretation and administrative law going forward,” said Katrina Kuh, Haub Distinguished Professor of Environmental Law at Pace University School of Law.

But she said it will likely have particular impacts on environmental law.

“It is a significant blow to efforts to use the Clean Air Act to control greenhouse gas emissions,” she said.

While New England is down to a few highly polluting coal power plants, Connecticut still faces the effects of pollution from such plants to our west and the effects from climate change more broadly.

Connecticut Attorney General William Tong, who has joined dozens of lawsuits and other actions aimed at fighting climate change, called the court action a major blow to federal efforts to fight it.

“This is a serious setback, but we cannot lose sight of what is at stake and what is urgently needed to fight the climate crisis,” he said in a statement. “Outdated and expensive coal plants are causing enormous damage to our environment and economy, and we cannot let this decision stall our transition to clean, renewable, and truly affordable power. This is a radical opinion that signals a dramatic shift in the Court’s approach to long-settled precedent. I expect today’s decision is just the beginning of this Court’s efforts to undermine agency authority, not just within the EPA but across the executive branch.”

While the decision only ruled on the issue of regulating greenhouse gas emissions in existing fossil fuel power plants, its reasoning drew on something known as the “major questions doctrine,” which essentially says if an agency wants to regulate something that is not already in statute and that has a major economic or political impact, it needs to get specific authority from Congress.

“Its judgment, I think, is guided by what it thinks is a major political or economic controversy,” Kuh said. “I think the vast majority of Americans maybe aren’t too concerned about loss of profits by coal companies and are really concerned about climate change.”

Sen. Richard Blumenthal, calling the decision a “senseless misstep” that “strait jackets our fight against the climate crisis,” was equally critical of the the Court’s reasoning.

“Its supposed ‘major questions’ doctrine is concocted from legal thin air — an outcome-driven bogus jurisprudential tenet. Once again, the Court’s misguided majority have shown that they are politicians with robes, pushing a far-right fringe agenda that they disclaimed as nominees before the American people,” he said.

The Clean Air Act does not cite climate change or greenhouse gas emissions. The EPA and other agencies have long relied on what’s called the Chevron deference — a ruling from the court in 1984, considered a bedrock of administrative law, that gives agencies, not courts, the leeway to address certain issues that are not specifically cited in law as long as the agency’s interpretation is reasonable.

It has been especially useful for the EPA, using the rationale that its matters are so complex, detailed, technical, time-consuming and changeable due to the evolution of scientific knowledge that they should be left to the experts within the agency.

But the court’s ruling would essentially put the responsibility on Congress, which, among its many gridlocked areas, has been particularly gridlocked on matters relating to climate change.

“Bottom line is federal environmental law is dead. Honestly, we’ve reached the end of the road on federal environmental law, because we’re not going to get brand new environmental statutes in the foreseeable future,” said Patrick Parenteau, professor emeritus of environmental law at Vermont Law School. “The only thing you can hope is that the agencies can rely on their existing authority to deal with these new threats, like forever chemicals and other things.

“So we are really stuck in a terrible, terrible place in terms of federal environmental law.”

In a statement, Bradley Campbell, president of the New England-based Conservation Law Foundation, said the decision had hobbled EPA’s ability to reduce power plant pollution.

“By arbitrarily limiting EPA’s explicit and broad authority under the Clean Air Act to require the use of less-polluting systems, the Court has consigned millions of Americans to more illness, shorter lives, and greater poverty in an overheated climate, while giving itself nearly unlimited authority to invalidate protections and safeguards intended by Congress.”

The case, known as West Virginia v. EPA, stems from two carbon-reducing power plans that were never implemented. The first was the Clean Power Plan, devised in the Obama administration, which targeted emissions from coal plants. Courts had prevented that from going into effect.

The second was the Affordable Clean Energy Rule the Trump administration devised after repealing the Obama plan, though its greenhouse gas emission reductions were far less. That rule also was stopped by the courts, and it was surprising the court took up the West Virginia case at all, since effectively there was no plan and the Biden administration had indicated it was going to come up with its own plan, not go back to Obama’s.

But the coal industry and more than a dozen states, including West Virginia, were already in court in support of the Trump plan at the time it was thrown out.

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

In her dissent, Justice Elena Kagan wrote: “Today, the Court strips the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’” She cited the 2007 decision that established greenhouse gas emissions as pollutants that can endanger public health and therefore had to be regulated by EPA.

Gov. Ned Lamont also decried the ruling.

Lamont, who reiterated his commitment to reducing carbon pollution, called on federal lawmakers to act.

“The climate crisis requires a national strategy and federal inaction is unacceptable,” Lamont said. “I urge Congress to enact meaningful legislation to avert this crisis.”

In a lengthy statement, President Joe Biden called the court ruling “another devastating decision that aims to take our country backwards.” He said he had already instructed his legal team to find ways to continue dealing with the climate crisis. “We cannot and will not ignore the danger to public health and existential threat the climate crisis poses.”

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