Federal carbon emissions policies are necessary, even if SCOTUS doesn't think so
Why the decision in West Virginia v Environmental Protection Agency is a problem for all of us
It’s time to discuss another 6-3 SCOTUS decision, West Virginia v Environmental Protection Agency. In the decision published on June 30, 2022, the SCOTUS redirected the limited the power of the EPA to enact policies related to carbon emissions. This case arose after West Virginia and several other states challenged the EPA’s authority to impose the Clean Power Plan rule, later replaced by the Affordable Clean Energy (ACE) rule, addressing forms of emissions, pursuant to their power to enact such regulations under the Clean Air Act. The rules essentially created a series of steps for firms to gradually reduce their greenhouse gas emissions from 2014 to 2030 by moving away from using so-called dirty energy sources.
The SCOTUS found that the states challenging the ACE rules had suffered an injury because they were required to regulate power plant emissions more stringently. The court felt this action relied on an unheralded power beyond what Congress had intended to bestow upon the EPA under the Clean Air Act. In answer to the case's central question: whether the “best plan of emissions reduction” identified by the EPA in the Clean Power Plan/ACE rules was within the scope of their authority, the six justice majority answered with a resounding no. In answering this question, the court relied on the so-called “major questions doctrine” to ask whether the EPA can make rules that are transformational to the economy, and found that it was not within its jurisdiction to do so.
The broader effect of this decision is to limit the ability of the EPA to enact federal programs that require all states to take action to reduce their carbon emissions. Without federal programs, passing effective climate change programs will be nearly impossible. If one state reduces emissions while neighbouring states do not, then any positive impacts from the state reducing emissions will be minimized if not entirely overwhelmed. While it is possible that federal legislation could be enacted to impose hard limits on carbon emissions, it is evident from this case that bi-partisan support for a law of this nature would be unlikely, and that even if a federal law were enacted, it would likely be challenged in the courts.
The changes required to comply with the Clean Power Plan and ACE rules were projected to be costly and to result in substantial job loss at coal power plants. While those are hard pills to swallow, these tolls are realities we need to start accepting. Converting to sustainable systems is expensive because it involves a massive overhaul of many critical infrastructures. Job loss associated with moving over to these systems is unavoidable, particularly for workers who are not in a position to be retrained. There absolutely needs to be a plan for that generation of workers. But here’s the thing - these costs are coming. We will not be able to avoid them forever. All this decision has done is kick the can down the road to when they will be more expensive because we will be coping with the increasing impacts of climate change and transitioning infrastructure and workers.
Our economy and so much of our way of living will need to change to reduce their impacts on the environment. This change needs to be driven by those with the expertise to target the areas where policies can be the most effective, like scientists and policy analysts at the EPA. Personal and local change is essential, and should be part of any climate change plan. Still, they will not compensate for a failure to set and abide by national and international standards and goals to reduce climate emissions. Without more extensive affirmative action, the change that needs to occur simply won’t happen in the time we have to get things under control.
The states challenging the EPA’s rules may have suffered an injury in fact through the increased costs that may have been associated with enforcing more stringent regulations on significant carbon emitters. However, that injury pales compared to the one we will all suffer when regulatory bodies tasked with addressing one of the most pressing issues of our time are unable to do so effectively. While the EPA is an American body, and this decision concerns American policy, it will affect all of us. In 2022, the United States was the second highest carbon emitter in the world, and the nature of carbon emissions is that they do not stay static in the country where they are produced. A failure to allow the EPA to enact federal policies will also impinge on the benefits experienced by carbon-reducing programs in other countries.
In recent months we have watched this bench make decisions with its eyes on the past - it has relied on textualism and history to guide how it interprets and shapes our modern world. Textualism will only exacerbate the climate crisis. It is imperative to be forward-looking and proactively support actions that keep our planet habitable. The SCOTUS failed to do so with this decision.
As I understand it, the Court wasn’t ruling on the policy merits of the climate regulations. They simply said that regulations that eliminate and radically alter whole industries have to be explicitly authorized by a statute passed by congress. The policy merits aren’t (and shouldn’t be) within the Court’s purview when evaluating existing law.