A new Supreme Court case could gut the government’s power to fight climate


The Supreme Court announced late last week that it will hear four very similar cases — all likely to be consolidated under the name West Virginia v. Environmental Protection Agency — which could prove to be some of the most consequential court decisions in recent US history.

That’s a bold statement, so allow me to explain.

The cases are the latest chapter in the seemingly never-ending litigation over the Clean Power Plan, arguably former President Barack Obama’s boldest effort to fight climate change. Though the plan was never implemented, it still exists in a zombie-like state. A federal appeals court decision revived the plan last January, but the Biden administration said in February that it would not reinstate Obama’s policy.

Even though it’s no longer likely to be implemented, the petitioners in the West Virginia case — red states, energy companies, and owners of coal mines — are fighting to get the Court to rule that the federal Clean Air Act does not authorize Obama’s plan. More importantly, they call for new limits on the Clean Air Act that would severely restrict the Environmental Protection Agency’s ability to reduce greenhouse emissions in the future.

But that’s only the tip of the iceberg. At least some of the parties in the West Virginia litigation claim that it is unconstitutional for the EPA to take the sort of aggressive strides against climate change that the Obama administration took in its Clean Power Plan. This theory wouldn’t just strip the EPA of much of its power to fight climate change, it could potentially disable Congress’s ability to effectively protect the environment.

And even this description of the West Virginia litigation doesn’t fully capture the stakes. The most aggressive arguments against the Clean Power Plan wouldn’t just apply to environmental regulations — they could also fundamentally alter the structure of the US government, stripping away the government’s power on issues as diverse as workplace safety, environmental protection, access to birth control, overtime pay, and vaccination.

In this scenario, hundreds of laws could be weakened or even deactivated. Many of them would be gone for good, and reenacting any of these laws would require passing legislation through a bitterly divided Congress.

So West Virginia is a monster of a case — potentially the culmination of a conservative vision incubated at the Federalist Society for years, and long championed by conservative activists such as Justices Neil Gorsuch and Brett Kavanaugh. Indeed, a majority of the Court has already expressed sympathy toward Gorsuch’s plans to shrink the power of federal agencies, which is a strong sign that the West Virginia petitioners are likely to prevail on at least some of their claims.

In the worst-case scenario for the Biden administration, the West Virginia case could make President Joe Biden the weakest president of the United States in over 80 years, and it could give a Supreme Court dominated by Republican appointees a veto power over huge swaths of federal policy.

Buckle up. Because the United States will be a very different place if the Court’s right flank gets its way in West Virginia.

The West Virginia litigation seeks to permanently entrench Trumpian environmental policy

The heart of the West Virginia case is a conflict between Obama’s environmental policy and the policy advanced by his successor, former President Donald Trump. The red states, power companies, and mining interests behind this lawsuit all hope to entrench Trump’s policies — potentially forever.

The Clean Air Act requires certain power plans to use the “best system of emission reduction” that can be achieved using existing technology, while also taking into account factors such as cost. This scheme raises an obvious question: Who shall determine what, exactly, is the “best system of emission reduction” at any given moment?

A worker in a turbine room at the coal-fired power plant in Winfield, West Virginia, in 2018.
Luke Sharrett/Bloomberg via Getty Images

Under the Clean Air Act, the answer to that question is the Environmental Protection Agency. It’s the EPA’s job to study changing technologies, determine when a new breakthrough should be adopted by power plants, and to order those plants to use that technology by issuing binding regulations. (Under certain circumstances, a power plant does not have to use the exact same technology preferred by the EPA. But power plants that use alternative methods typically will only be allowed to do so if they can achieve the same levels of emission reduction that would be achieved using the EPA’s methods.)

The Clean Power Plan didn’t simply call upon coal-firing power plants to install devices that would make them burn more efficiently. It also called for power plants to shift away from coal and toward cleaner methods of generating energy, including both natural gas and methods that produce no emissions at all, such as solar.

The West Virginia petitioners claim that EPA cannot require such a shift. And these parties have always been likely to prevail before a judiciary dominated by Republicans. In 2016, just days before Justice Antonin Scalia’s death briefly denied Republican appointees a majority on the Supreme Court, the justices voted 5-4 to halt the Clean Power Plan.

For a while, the Clean Power Plan’s opponents had powerful allies, in Trump and his EPA. In 2019, Trump’s EPA announced a new policy, euphemistically known as the “Affordable Clean Energy” (ACE) rule, which replaced the Clean Power Plan with much weaker rules.

The Trump-era rules urged coal plants to install technologies, such as upgraded soot-blowers and boiler feed pumps, which could marginally reduce emissions — and that’s pretty much it. As a federal appeals court explained in an opinion striking down these rules, “the EPA predicted that its ACE Rule would reduce carbon dioxide emissions by less than 1% from baseline emission projections by 2035.” And even that prediction was optimistic. Trump’s EPA acknowledged that its recommended technologies might wind up increasing emissions because they would reduce the cost of producing energy with coal.

This appeals court opinion is now being reviewed by the justices in West Virginia, and the various parties that brought this case urge the Court to state definitively that the Clean Power Plan is not allowed. Such a decision is likely to fundamentally alter the EPA’s powers in ways that could make it very difficult for the Biden administration — or any future administration — to abandon Trump’s policies.

How federal agencies shape policy

The Clean Air Act relied on a type of governance that is ubiquitous in federal law. Congress lays out a broad policy — in this case, that power plants must use the “best system of emission reduction” — and then delegates to the EPA the task of implementing that policy through a series of binding regulations.

Countless federal statutes rely on a similar structure. The Affordable Care Act, for example, requires health insurers to provide certain preventive treatments — such as birth control, many vaccinations, and cancer screenings — at no additional cost to patients, and it delegates the task of determining which treatments belong on this list to experts at the Department of Health and Human Services. The Department of Labor may raise the salary threshold governing which workers are eligible for overtime pay, in part to keep up with inflation.

There are several reasons why this sort of governance, where a democratically elected legislature sets a broad policy and then delegates implementation to a federal agency, is desirable. For one thing, Congress is a dysfunctional mess. If a new act of Congress were required every time…


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