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Supreme Court Limits EPA’s Powers – So What Happens Now?

Steam rises from the cooling towers of the Duke Energy Crystal River coal-fired power plant in Crystal River, Florida, U.S., on March 26, 2021.

Dane Rees | Reuters

On Thursday, the Supreme Court changed the rules of the game in the fight to limit global warming by limiting the Environmental Protection Agency’s authority to control carbon emissions.

Specifically, the court ruled in West Virginia v. EPA that requiring the EPA to shift power generation from a single source, say, from coal to wind or solar power, was overbroad, saying such a mandate should come only from Congress.

“There is little reason to believe that Congress entrusted such decisions to the Agency,” Chief Justice John Roberts wrote in a 6-3 decision joined by other conservative members of the court. “The primary and consequential trade-offs involved in such a choice are those that Congress likely intended for itself.”

The decision rested on a recent framework called the “fundamental issues doctrine,” which holds that government agencies exist to carry out the will of Congress and its elected leaders, not to decide those issues themselves. By regulating such massive components of the economy as how electricity is generated, the EPA acted excessively, the ruling said.

“The Constitution does not permit agencies to use regulations on the use of pens and telephones as a substitute for laws enacted by the people’s representatives,” Justice Neil Gorsuch wrote in a concurring opinion.

Justice Elena Kagan wrote a scathing dissent, arguing that it is dangerous to take away authority from the EPA precisely when the United States — and much of the world — is failing to meet its decarbonization targets. “If the current rate of emissions continues, babies born this year could live to see parts of the East Coast swallowed by the ocean,” Kagan wrote.

“Whatever else this Court knows, it has no idea how to deal with climate change. And let’s state the obvious: the stakes here are high. Still, the Court today blocks the agency’s congressionally-authorized actions to curb carbon emissions from emitting power plants. The Court appoints itself—instead of Congress or an expert agency—as the climate policy decision maker. I can’t think of more terrible things,” Kagan wrote.

However, while the court limited the EPA’s authority, it did not render the agency powerless to address carbon emissions. It can still regulate greenhouse gas emissions at certain power plants, among many other things. States can also make their own laws, although enforcement can be difficult.

At the same time, although fossil fuel suppliers are expected to take advantage of the decision to delay decarbonisation and challenge future laws through the courts, clean energy is becoming cheaper, which could accelerate the transition away from fossil fuels without government intervention.

What else can EPA and the states do?

EPA Administrator Michael S. Regan said in a statement Thursday that he was “deeply disappointed by this decision,” but added that the agency “will move forward to legally establish and implement environmental standards that are consistent with our commitment to protect all people and all communities from environmental damage”.

According to Alex Gilbert, an adjunct professor at Johns Hopkins University and director of nuclear startup Zeno Power, the EPA still has a few arrows in its quiver.

“This is a narrow technical and procedural ruling that has relatively limited impact on EPA’s general authorities,” Gilbert told CNBC. “The court left the door open for the Biden administration to set standards using site-specific capabilities as well as other systemic ways to reduce emissions that don’t require generational switching.”

According to Eric Schaefer, executive director of the Environmental Integrity Project, a non-profit non-partisan organization that aims to strengthen public health and environmental policy, mandating the efficiency of coal plants could reduce greenhouse gas emissions by 10-15%.

In addition, the EPA could still require emissions reductions by implementing standards requiring coal-fired plants to upgrade to burn natural gas, Schaefer told CNBC. According to the US Energy Information Administration, burning natural gas produces about 40% less carbon dioxide than burning coal to create the same amount of energy.

Carbon capture and sequestration technologies can also help existing plants minimize greenhouse gas emissions at the plant level, Schaeffer said, but the technology is still prohibitively expensive.

“The EPA must consider costs when setting carbon emissions standards from power plants,” Schaefer told CNBC. “The carbon sequestration requirement for existing plants is unlikely to pass the test because it is very expensive, so it is unlikely to be the basis for revising the standards.”

If the agency forces coal plants to convert to natural gas or implement carbon capture, it could end up closing them, accelerating the transition to renewable energy. “The compliance costs are too high for large facilities,” Gilbert told CNBC.

Schaeffer also agrees that the High Court still left room for the EPA to take meaningful action.

“The court at least made it clear that the EPA can impose carbon emissions on certain power plants that are based on efficiency gains and fuel switching. That approach can really lead to pretty tough restrictions,” Schaefer told CNBC.

Besides the EPA, state governments can set emissions targets, says Jennifer K. Rushlow, director of the Environmental Law Center at Vermont Law School.

“Many states now have economy-wide caps on greenhouse gas emissions, often called Global Warming Solutions Acts,” Rushlow told CNBC. California and Massachusetts were the first states to pass such GWSA laws, she said.

However, compliance with these state GWSA laws can be difficult.

“In many states, these laws are not strictly enforceable by third parties, and so unless the state takes sufficient action, the laws become wishful thinking. However, in some cases, their implementation was possible,” Rushlov said.

She speaks from experience handling the Massachusetts case, Kane v. Department of Environmental Protection, which was successful in forcing the state to take action to reduce greenhouse gas emissions. Vermont also has a GWSA.

“If state GWSAs can have teeth like that, they have a real chance to make a difference,” Rushlow told CNBC. “Although, of course, climate change is a global issue, so we need more than just a few states meeting these commitments.”

Likelihood of new trials

The ruling may not be as dire as it could have been, but experts say it could help the fossil fuel industry delay steps to decarbonize the economy, paving the way for them to challenge the new rules in court.

“I have absolutely no opinion here. On the one hand, yes, it’s a pretty narrow decision, at least in terms of what might have happened. It’s a good lining and partly the good news of the day,” Gernot Wagner, a climate economist at Columbia Business School, told CNBC.

“On the other hand, the fossil industry—the coal industry, really—knows they’re losing the war. All they’re hoping for is anything that helps delay the inevitable. And yes, this decision does limit regulatory options and favors for now coal plant is another flimsy lifeline.”

In particular, the ruling opens the door to new legal proceedings, which will inevitably delay decarbonisation.

“More importantly, of course, this is not the end. Any EPA regulation — any legislation, for that matter — will be litigated. All these delays will add up and the same thing will happen: any delay is a win for the fossil/coal interests and a loss for everyone else,” Wagner said.

“So, yes, the EPA could regulate coal itself, which would make coal (even) more expensive and could force some companies to move away from coal as a result. But every time that happens, the plant will presumably scream, sue, and the courts will (presumably) agree and interpret the SCOTUS ruling to mean that regulation can’t be too burdensome to prevent fuel switching — and we back to the beginning.”

Private markets can force a shift either way

​​​​​​While public action is still necessary to reduce carbon emissions in the long term, private markets can force the issue in the near term. That’s because clean energy is fast becoming the cheapest form of energy, one expert says.

“I don’t think this decision will be as important to the electrical industry in the long term as many believe. The private sector is already demanding low-carbon energy, and lower-carbon sources — renewables or natural gas — are very cost-competitive,” Michael P. Vandenberg, professor of environmental law at Vanderbilt Law School, told CNBC. “We can get a billion tons. reductions in greenhouse gas emissions from the private sector each year, an amount equal to Germany eliminating its emissions entirely.’

Vandenberg is optimistic about the future, in part because he didn’t expect much action on climate change from the federal government anyway.

“I predicted the government wasn’t going to do enough about a decade ago, so I’ve spent the last decade developing two major alternatives that are designed to reduce emissions even without major federal action,” Vandenberg told CNBC. He sees changes taking place in the private sector and increasing consumer demand for sustainable alternatives. “We can get about half a billion tons from improving household energy efficiency,” Vandenberg told CNBC.

“It’s not a solution, but they can buy time for voters to overcome barriers against federal government action,” Vandenberg said.

Supreme Court Limits EPA’s Powers – So What Happens Now?

Source link Supreme Court Limits EPA’s Powers – So What Happens Now?

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