In a decision expected to set back government efforts to fight climate change, the Supreme Court ruled yesterday that the U.S. Environmental Protection Agency exceeded its authority under the Clean Air Act by including a shift to renewable energy in its strategy for reducing greenhouse gas emissions. The ruling on West Virgina vs. EPA has been widely received as a major step backward in the struggle to prevent the worst effects of warming.

This was the view of the dissenting liberal justices on the court, who said the ruling stripped the EPA of “the power to respond to the most pressing environmental challenge of our time.”

“How on earth can you argue that the federal government doesn’t have a legitimate duty to regulate greenhouse gas emissions when there is incontrovertible proof that they are destroying the planet?” says Brigid Shea, a commissioner in Travis County, Texas, and board president of ICLEI USA, a network of local governments addressing global climate challenges.

“A state’s climate action efforts are now only as good as their nearest neighbors’ policies,” says Pennsylvania state Rep. Danielle Friel Otten. “We have relied on — and should be able to rely on — the U.S. EPA to set baseline policy and regulation and to set national standards for addressing climate change.”

As in the court’s recent decision on abortion rights, the ruling is at odds with the wishes of the public. The majority of Americans favor a clean energy standard that would decrease the use of fossil fuels and increase the use of renewable energy, says Kate Wright, executive director of Climate Mayors, a bipartisan network of mayors committed to climate action.

“The support is there,” Wright says. “To see a court of justices who were not elected acting against the interests and the will of the people is deeply disturbing.”

SCOTUS decision on WV v EPA is out. Im actually breathing a sigh of relief. In what may be best of plausible outcomes, a radical SCOTUS that has been tearing up precedent all term left EPA’s authority to regulate climate-warming gases intact, though more narrowly constrained.

— JesseJenkins (@JesseJenkins) June 30, 2022

A Twisted Road

West Virginia vs. EPA has its origins in challenges to the Obama administration’s 2015 Clean Power Plan (CPP).

The Clean Air Act gives the EPA authority to determine the “best system of emission reduction” (BSER) for power plants. The CPP included “shifting generation from fossil fuel units to renewable energy generation” as one of three building blocks in its system for emission reduction.

The plan was challenged in federal court and the Supreme Court put it on hold in 2016. In 2019, the EPA, under the Trump administration, repealed the CPP and interpreted the Clean Air Act to mean that the BSER could only encompass emissions from the facilities themselves. Its Affordable Clean Energy Rule (ACE) only included measures relating to the physical premises of a power plant.

(Even though the CPP had never been enacted, the emission reductions it envisioned were attained in 2019, more than a decade ahead of schedule.)

New legal challenges were mounted, this time to the repeal of the CPP and an appeals court vacated the ACE Rule. Then the Supreme Court granted a request to review this ruling.

The CPP was never implemented, and the EPA under the Biden administration, has stated that it does not intend to reinstate it. In a New York Times opinion piece, Sambhav Sankar, a senior vice president at the environmental law group Earthjustice, argued that there was no dispute to resolve.

“Why is the court going beyond calling balls and strikes, as Chief Justice John Roberts memorably described his role, to take a case it arguably doesn’t have jurisdiction to hear?” he asked.

Nonetheless, the case moved forward.

Sources of U.S. Electricity Generation, 2021

The majority of U.S. electricity is generated by burning fossil fuels; emission reduction goals can’t be reached without a shift toward renewable sources.

Can Congress Lead?

The ruling does not constrain EPA’s power to regulate emissions by power plants burning fossil fuels but it leaves it to Congress to consider broader measures such as cap and trade, and to lead the way to zero-carbon power. Given the current state of climate politics, there could be a long wait for this leadership to manifest.

Not everyone in Congress agrees that there’s even a problem to solve. According to an analysis by the Center for American Politics, the 117th Congress includes 30 senators and 109 representatives who “refuse to acknowledge the scientific evidence of human-caused climate change.”

Scientific expertise is another matter. The U.S. EPA is more than a regulator; it is an environmental and human health research organization staffed with scientists whose work informs its decision-making.

Climate change is a complex problem, and there are ongoing discoveries about causal factors, environmental impacts and economic consequences. Understanding what needs to be done about these isn’t a part-time job, and the turmoil regarding pandemic response underscores how hard it can be for legislators to find common ground in regard to science-based policy.

As with COVID-19, the partisan divide is daunting. All the climate skeptic legislators are Republican, and the party seems likely to retain enough seats in both houses to impede aggressive climate proposals for the foreseeable future. It remains to be seen whether the court’s ruling will mobilize voters in support of congressional candidates who will push for climate action, no matter their party.

In the short term, the National Caucus of Environmental Legislators (NCEL) has called for Congress to “act swiftly and codify EPA’s authority to regulate emissions across from the power sector.” Earthjustice has urged it to “quickly pass a reconciliation package that includes climate, justice and jobs investments.”

A coal-fired power plant in West Virginia looms over a residential neighborhood in Ohio that sits across a river from it. (Lisa DeJong/Lisa DeJong/The Plain Dealer/TNS)

The Path Forward for States

Leaving the regulation of greenhouse gas emissions at the state level will be a challenge. “A state could enact the best climate and renewable energy policies and practices in the world, and now their neighboring state can have smokestacks sending carbon emissions into the air right across a state line or a shared river,” says Rep. Otten.

Even states that are working hard to regulate emissions depend on a federal baseline, and climate-conscious legislators in state bodies that are reluctant to tackle the problem rely on this baseline even more, says Clara Summers, climate and energy manager for NCEL.

“States have seen this type of federal backsliding before, in different ways, and have been stepping up to reduce emissions in the ways they can control,” she says. Many U.S. states have economies the size of other countries, and when such a state takes action it matters.

Two-thirds of U.S. states have renewable portfolio standards, setting requirements for the share of electricity sold by utilities that comes from renewable sources. At present only a dozen are aiming for 100 percent renewable power. These standards will become more significant in the wake of the Supreme Court ruling; Summers expects to see states tighten them and improve practices around compliance accounting.

Working together with neighboring states will be more important than ever, says Otten, the NCEL lead in her state. “Local and state efforts, like strengthening methane regulations, plugging abandoned wells and participating in the Regional Greenhouse Gas Initiative will keep us moving forward, in spite of these attacks on federal regulatory authority.” Billions of dollars for projects that can reduce emissions are included in the Bipartisan Infrastructure Law (BIL).

Local Leadership

Climate change resonates strongly for cities already buffeted by hurricanes, wildfires, floods and extreme heat. This has motivated mayors to move forward whatever the direction of federal or state policy might be, according to Kate Wright.

“We actually grew significantly as an organization when former President Trump pulled out of the Paris agreement,” she says. “There were many, many cities that felt that, collectively, they needed to continue to move our nation forward.”

“This is familiar territory for mayors,” says Satya Rhodes-Conway, mayor of Madison, Wis., of the Supreme Court ruling. “We have long been at the front line of emissions reductions efforts and have no intention of slowing down.”

Many cities have divested pension funds from fossil fuels, says Wright and some have decided to close plants that use them. Others have pursued community choice aggregation programs to help residents switch to renewable sources of electricity or powered municipal facilities with 100 percent clean energy.

More than a thousand jurisdictions are using ClearPath, an ICLEI software application that enables them to baseline and manage greenhouse gas emissions.

The ruling increases the urgency around discussions about what to do with the unprecedented levels of funding from the BIL. “Our focus turns to those conversations at this point,” Wright says.

This won’t be the first time local leaders have had to fill a void in the fight against climate change, says Houston Mayor Sylvester Turner, chair of Climate Mayors. “We urge Congress to support us and to act swiftly to protect community health and our collective climate.”

Courage and the Inevitable

At present, the U.S. is not on track for meeting its 2030 emission reduction goals, says Wright. Subnational efforts are vital, but that means that local jurisdictions are doing one-offs on an urgent issue with a short window. “That is not a replacement for federal action.”

Brigid Shea moved to Texas three decades ago specifically to work on climate issues. She recalls a moment involving a legendary Texas politician that she’d love to see recur in regard to Congress and climate, when Lyndon Baines Johnson signed a bill that guaranteed African Americans the right to vote.

“That’s not something people question today, but they did then,” she says. “LBJ pulled Southern Democrats aside and said that this might mean some of them wouldn’t be re-elected, but that they had a moral duty to do it.”

There are unanswered questions about how the line of reasoning in West Virginia vs. EPA could lead to other rulings that take important regulatory powers away from federal agencies. In the case of power generation, at least, technology innovation and economics could make regulation of coal or gas-fired facilities irrelevant.

The Supreme Court ruling could slow the transition to renewables in some states in the short run, says Chris Nelder, a former energy analyst for RMI and host of a podcast in which government officials, researchers and technology experts discuss the energy transition. “It won’t have much effect on the leading states, whose policies in support of the transition are well in motion and won’t be reversed by this, because they weren’t driven by EPA in the first place.”

“Even the lagging states will have to join the transition soon enough, because it simply costs less to generate power from renewables than from fossil fuels, and no utility or utility regulator can ignore that fact forever.”

Republished with permission from Governing Magazine, by Carl Smith