supreme court climate change

Op-ed: Reflections on the Supreme Court’s Decision in West Virginia v. EPA

Danger resides in the majority’s having invoked a sweeping “Major Questions Doctrine” to justify its decision in this relatively narrow case.

The recent 6-3 U.S. Supreme Court decision in West Virginia v. EPA was an exercise of raw political power.

The anti-regulation, conservative majority did it with a highly contrived, legally threadbare argument simply because they could. Notably, the dispute was about a regulation — the Clean Power Plan (CPP) — that was no longer in effect.

It’s also worth noting that market forces had already done more to drive a transition away from coal in U.S. electricity generation than the CPP had been predicted to do, had it stayed in force.

The only apparent reasons for the Supreme Court to take the case were (1) to allow the Court’s most radical majority in modern times to reduce the Environmental Protection Agency’s authority to address climate change, and (2) to do so in a way that would open the door to future decisions reining in the power of the so-called “administrative state” to regulate industry under broad guidelines granted by the Congress.

Depriving the agency of an important option 

What the decision explicitly forbids EPA to do is to use “generation-shifting mechanisms”— that is, forcing electricity generators to shift to cleaner options -- to reduce the reliance of U.S. electricity generation on coal-fired power plants.

The ruling does not deprive EPA of the right to regulate coal-fired power plant emissions in other ways, such as with emission standards or technology requirements applied to specified types of plants. (One could assume the Court only left those options open to EPA because it was only the generation shifting options that had been challenged in the case the Court was reviewing.)

The Court’s majority claims it is simply returning to Congress the opportunity to indicate whether or not it intended to delegate to EPA authority to do the specific thing that the disputed regulation did; but the majority is well aware there’s no chance the current Congress would come down in favor.

While the ruling does, then, deprive EPA of one important option for regulating greenhouse-gas emission, the far larger danger resides in the majority’s having invoked a sweeping “Major Questions Doctrine” to justify its decision in this relatively narrow case.

Dangerous doctrine 

That majority declared that this newly labeled doctrine — whose antecedents in previous Court decisions do not fit the current case (see Justice Kagan’s dissent)― holds that rules imposed by EPA or other Executive Branch agencies are subject to judicial review if the rules have major economic or other societal impacts and were not authorized, explicitly and in detail, in the language of Congress’s delegation of authority to the agency in question.

Inasmuch as Congressional delegations of regulatory authority to Executive Branch agencies often do not specify the specific regulatory tools the agencies may use (for the good reason that Congress lacks the relevant expertise and doesn’t wish to constrain those better equipped), the majority’s newly elevated doctrine puts a vast array of environmental and business regulations at risk when this Court finds opportunities to review them.

John Holdren is a research professor in Harvard University’s Kennedy School of Government and Co-Director of the Science, Technology, and Public Policy Program in the School’s Belfer Center for Science and International Affairs.

From January 2009 to January 2017, Holdren was President Obama’s Science Advisor and Senate-confirmed Director of the White House Office of Science and Technology Policy

Clock approaching midnight superimposed over a world map
Credit: chughes/ BigStock Photo ID: 20162111

'Doomsday Clock' advances to 85 seconds till midnight

A science-oriented advocacy group moved its “Doomsday Clock” to 85 seconds to midnight, saying the Earth is closer than ever to destruction.
A bobblehead of President Donald Trump on the floor of the Arizona House of Representatives
Credit: Gage Skidmore/ https://www.flickr.com/photos/gageskidmore/5427075... https://creativecommons.org/licenses/by-sa/2.0/

US withdrawal from Paris Agreement comes into effect

Major emitter the US has officially left the Paris Agreement and global emissions keep rising a decade on from the deal. Yet renewables' growth shows climate action can work. Here's what's been done and what's missing.
Donald Trump speaking at the 2013 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.
Credit: Gage Skidmore/ https://www.flickr.com/photos/gageskidmore/8566717881/ https://creativecommons.org/licenses/by-sa/2.0/

Trump’s biggest climate rollback stalls over fears it will lose in court

Trump officials have delayed finalizing the repeal of the agency’s “endangerment finding” over concerns the proposal is too weak to withstand a court challenge.
Heavy ice build up on a truck during an ice storm
Credit: Montegari Photography/BigStock Photo ID: 4268515

A winter storm fueled by global warming tests U.S. disaster response

A sprawling winter storm that left hundreds of thousands without power, grounded thousands of flights and disrupted travel across the eastern half of the U.S. could be the first real test of the second Trump administration’s Federal Emergency Management Agency.

Exterior of NCAR, National Center For Atmospheric Research
Photo credit: jenlo8/ BigStock Photo ID: 333253774

What Americans lose if their National Center for Atmospheric Research is dismantled

Five ways dismantling NCAR will cost the American people, and two ways to save it.
Aerial view of Marcellus Shale fracking well in Pennsylvania
Copyright: shutterrudder/BigStock Photo ID: 53059774

Despite limited interest in drilling on federal land, US Forest Service ‘streamlines’ oil and gas leasing rules

The U.S. Forest Service announced revisions to its oil and gas leasing rules today that the agency promises “modernizes and streamlines” the permitting process to drill for fossil fuels in the nation’s forests and grasslands.

US president, Donald Trump speaking and gesturing behind lectern
Credit: Gage Skidmore/ https://www.flickr.com/photos/gageskidmore/8566717881/ https://creativecommons.org/licenses/by-sa/2.0/

Trump admin clips EPA oversight amid deregulatory blitz

POLITICO’s E&E News reviewed the steady dismantling of scientific and regulatory oversight functions happening largely under the radar.
From our Newsroom
Multiple Houston-area oil and gas facilities that have violated pollution laws are seeking permit renewals

Multiple Houston-area oil and gas facilities that have violated pollution laws are seeking permit renewals

One facility has emitted cancer-causing chemicals into waterways at levels up to 520% higher than legal limits.

Regulators are underestimating health impacts from air pollution: Study

Regulators are underestimating health impacts from air pollution: Study

"The reality is, we are not exposed to one chemical at a time.”

Pennsylvania governor Josh Shapiro speaks with the state flag and American flag behind him.

Two years into his term, has Gov. Shapiro kept his promises to regulate Pennsylvania’s fracking industry?

A new report assesses the administration’s progress and makes new recommendations

silhouette of people holding hands by a lake at sunset

An open letter from EPA staff to the American public

“We cannot stand by and allow this to happen. We need to hold this administration accountable.”

wildfire retardants being sprayed by plane

New evidence links heavy metal pollution with wildfire retardants

“The chemical black box” that blankets wildfire-impacted areas is increasingly under scrutiny.

Stay informed: sign up for The Daily Climate newsletter
Top news on climate impacts, solutions, politics, drivers. Delivered to your inbox week days.