The US Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants

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Renaud de RICHTER

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Jun 30, 2022, 4:43:01 PMJun 30
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www.nytimes.com /live/2022/06/30/us/supreme-court-epa

Supreme Court Strips Federal Government of Crucial Tool to Control Pollution

Adam Liptak 30/06/2022

President Biden vowed to press forward with his climate agenda after a decision that “risks damaging our nation’s ability to keep our air clean.”

Republicans cheered the ruling, with Senator Mitch McConnell saying it limited the power of “unelected, unaccountable bureaucrats.”


WASHINGTON — The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, dealing a blow to the Biden administration’s efforts to address climate change.

The vote was 6 to 3, with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of “the power to respond to the most pressing environmental challenge of our time.”

Chief Justice John G. Roberts Jr., writing for the majority, only glancingly alluded to the harms caused by climate change. Justice Elena Kagan began her dissent with a long passage detailing the devastation the planet faces, including hurricanes, floods, famines, coastal erosion, mass migration and political crises.

The question in the case, Chief Justice Roberts wrote, turned on the scope of the language of the Clean Air Act. Under it, he wrote, Congress had not clearly given the agency sweeping authority to regulate the energy industry.

“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,’” he wrote, quoting an earlier decision. But, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In dissent, Justice Elena Kagan wrote that the court had substituted its own policy judgment for that of Congress.

“Whatever else this court may know about, it does not have a clue about how to address climate change,” she wrote. “And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.”

“The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”

Patrick Morrisey, the attorney general of West Virginia and one of the leaders of the challenge to the E.P.A.’s authority, welcomed the decision.

“E.P.A. can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation,” he said.

Richard Lazarus, a law professor at Harvard, said that “the court’s ruling is a major setback for E.P.A.’s ability to address climate change, and it could hardly have come at a worse time.”

“By insisting instead that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the court knows that Congress is effectively dysfunctional,” he said, “the court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change.”

The ruling curtailed but did not eliminate the agency’s ability to regulate the energy sector, and the agency may still use measures like emission controls at individual power plants. But the court ruled out more ambitious approaches like a cap-and-trade system.

The implications of the ruling could extend well beyond environmental policy. It also signals that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.

That skepticism has been evident in recent decisions arising from the coronavirus pandemic. The court ruled, for instance, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers be vaccinated or undergo frequent testing.

The question before the justices in the new case, West Virginia v. Environmental Protection Agency, No. 20-1530, was whether the Clean Air Act allowed the E.P.A. to issue sweeping regulations across the power sector. More broadly, the court was asked to address whether Congress must “speak with particular clarity when it authorizes executive agencies to address major political and economic questions.”

Justices have called that inquiry the “major questions doctrine,” and it played a key role in Thursday’s decision. Chief Justice Roberts, using the phrase for the first time in a majority opinion, said it applied in cases of unusual significance and was meant to address “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

The provision of the Clean Air Act invoked by the Biden administration, the chief justice wrote, was too oblique and so ran afoul of the major questions doctrine.

Chief Justice Roberts’s opinion advanced a central goal of the conservative legal movement, that of curtailing the power of the administrative state. But it did so in a characteristically measured way.

In a full-throated 19-page concurring opinion, Justice Neil M. Gorsuch, joined by Justice Samuel A. Alito Jr., elaborated on what the chief justice had written.

“When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands,” Justice Gorsuch wrote. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

In dissent, Justice Kagan wrote that the statute at issue in the case had given the agency ample authority. “The Clean Air Act was major legislation, designed to deal with a major public policy issue,” she wrote, adding: “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise,” she wrote.

She added that the agency was best suited to take on climate change.

“This is not the attorney general regulating medical care, or even the C.D.C. regulating landlord-tenant relations,” she wrote. “It is E.P.A. (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”

The Supreme Court’s conservative majority is generally committed to textualism, the mode of statutory interpretation that focuses on the words of the law. In a 2015 appearance at Harvard Law School, Justice Kagan said that textualism had triumphed across the ideological spectrum. “We’re all textualists now,” she said.

On Thursday, she wrote that “it seems I was wrong.”

“The current court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

The case had an unusual history.

Last year, on the last full day of Donald J. Trump’s presidency, a federal appeals court in Washington struck down his administration’s plan to relax restrictions on greenhouse gas emissions from power plants. The Trump administration said the Clean Air Act unambiguously limited the measures the agency could use to those “that can be put into operation at a building, structure, facility or installation.”

A divided three-judge panel of the court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled that the Trump administration’s plan, called the Affordable Clean Energy Rule, was based on a “fundamental misconstruction” of the relevant law, prompted by a “tortured series of misreadings.”

“The E.P.A. has ample discretion in carrying out its mandate,” the decision concluded. “But it may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”

The panel did not reinstate a 2015 Obama-era regulation, the Clean Power Plan, which would have forced utilities to move away from coal and toward renewable energy to reduce emissions. But it rejected the Trump administration’s attempt to replace that rule with what critics said was a toothless one.

The appeals court’s ruling also cleared the way for the Biden administration to issue stronger restrictions.

The Obama-era plan had aimed to cut emissions from the power sector by 32 percent by 2030 compared with 2005 levels. To do so, it instructed every state to draft plans to eliminate carbon emissions from power plants by phasing out coal and increasing the generation of renewable energy.

The Clean Power Plan never came into effect. The Supreme Court blocked it in 2016, effectively ruling that states did not have to comply with the measure until a barrage of lawsuits from conservative states and the coal industry had been resolved.

In her dissent on Thursday, Justice Kagan said that move was the beginning of a series of grave mistakes.

“This court has obstructed E.P.A.’s effort from the beginning,” she wrote. “Right after the Obama administration issued the Clean Power Plan, the court stayed its implementation. That action was unprecedented: Never before had the court stayed a regulation then under review in the lower courts.”

The court’s action in 2016, followed by changes in the court’s membership that moved it to the right, made environmental groups wary of what the court might do in cases on climate change.

They were surprised and scared when the court granted review in the case, as there was no regulation in place for the court to review.

Justice Kagan wrote that the court’s eagerness was telling. “This court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change,” she wrote.


June 30, 2022, 4:17 p.m. 

Farnaz Fassihi

The United Nations warned that the ruling could delay internationally agreed-upon climate goals. “Decisions like the one today in the U.S. or any other major emitting economy make it harder to meet the goals of the Paris Agreement for a healthy, livable planet,” said the statement from the spokesman of Secretary General António Guterres. The statement said the actions of a single nation “should not and cannot make or break whether we reach our climate objectives.”

Wil Burns

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Jun 30, 2022, 4:53:23 PMJun 30
to Renaud de RICHTER, Carbon Dioxide Removal

One of the interesting questions that may arise out of the Court’s interpretation of Sec. 111 of the CAA is the potential role of CCS in a future rule crafted by Biden’s EPA, an issue suggested by Justice Kagan in her dissent. So, beyond potentially increasing the exigency for CDR, might be pertinent to advancing a technical with relevance to BECCS.

 

wil

 

 

 

 

 

WIL BURNS

Visiting Professor

Environmental Policy & Culture Program

Northwestern University

 

Email: william...@northwestern.edu  

Mobile: 312.550.3079

 

1808 Chicago Ave. #110

Evanston, IL 60208

https://epc.northwestern.edu/people/staff-new/wil-burns.html

 

Want to schedule a call? Click on one of the following scheduling links:

 

I acknowledge and honor the Ojibwe, Potawatomi, and Odawa, as well as the Menominee, Miami and Ho-Chunk nations, upon whose traditional homelands Northwestern University stands, and the Indigenous people who remain on this land today.

 

 

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Robert Tulip

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Jul 1, 2022, 1:02:03 PMJul 1
to Renaud de RICHTER, Carbon Dioxide Removal

The Supreme Court decision in favour of West Virginia Coal has shown that emission reduction is only possible through authoritarian state action, since it is so unpopular that it will never be agreed through democratic processes once people understand the real costs. 

 

This is the fatal flaw of the IPCC strategy.  The dream of the reductionists goes up in smoke.  It is time to accept that geoengineering is a superior and necessary substitute for emission reduction.

 

Start with planetary brightening, then develop CO2 conversion.  Slowing down the transition from fossil fuels is a feature, not a bug, broadly welcomed except by green ideologues.  We need a transformation of politics, overcoming partisan division on climate through cooperation with fossil fuel industries.  A geoengineering-led climate policy will reduce economic disruption and political conflict while bringing immediate benefits for climate protection by mitigating warming, extinction, sea level rise and extreme weather.

 

Robert Tulip

 

From: carbondiox...@googlegroups.com <carbondiox...@googlegroups.com> On Behalf Of Renaud de RICHTER


Sent: Thursday, 30 June 2022 10:43 PM
To: Carbon Dioxide Removal <CarbonDiox...@googlegroups.com>

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