Tuesday, September 26, 2023

West Virginia v. EPA Supreme Court ruling on carbon dioxide emissions isn’t the only legal attack on the environment

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The Supreme Court ruled on Thursday that the Environmental Protection Agency does not have the authority to regulate carbon dioxide emissions from power plants without Congressional approval, drastically limiting the policy tools the EPA can use to address climate change.

The mood in the West Virginia v. EPA Thursday’s decision was 6-3, with the three Liberal members of the Court disagreeing. In the majority view, Chief Justice John Roberts wrote that the EPA “must point to ‘clear consent from Congress’ for the power it claims.” He added: “Cutting carbon dioxide emissions to levels that will force a nationwide transition from using coal to generate electricity may be a sensible solution to the current crisis, but it is unlikely to Congress has given the EPA the authority to adopt such a regulatory system itself.”

This ruling affects not only the government’s ability to protect the environment, but also the extent to which federal agencies can enforce regulations at all.

“This court has dismantled the administrative state in one go”, Rebecca Bratspiessaid a law professor at the City University of New York who studies environmental justice, in an email.

The West Virginia case was always a bit bizarre. It centers on President Obama’s Clean Power Plan, which aimed to reduce greenhouse gas emissions from power plants, the second largest source of carbon dioxide in the US. But the policy was replaced before it was implemented, and then its replacement was blocked by a federal appeals court. Meanwhile, there were questions about whether the Supreme Court even had jurisdiction to hear the case. As Ian Millhiser of cafemadrid described it, West Virginia v. EPA is “a case of environmental regulation that no longer exists, that never came into effect, and that would not have achieved much if it had been in force.”

But the decision means agencies like the EPA cannot create regulations themselves that have extensive social and economic implications, despite decades of precedent setting that has done just that. Such rules would now require Congress to specifically enact laws to enforce them, and given the difficulty of passing federal legislation, it would drastically affect the EPA’s ability to control the pollution that warms the planet.

“Whatever else this court knows, it has no idea how to deal with climate change,” wrote Justice Elena Kagan in her dissent. “The stakes are high here. Still, the Court today prevents action by Congress-authorized agencies to curb carbon dioxide emissions from power plants. The Court appoints itself — rather than Congress or the expert bureau — as the decision-maker on climate policy. I can’t think of anything more terrifying.”

The West Virginia v. EPA The decision is just the latest in a string of recent lawsuits and rulings that affect air, water and climate protection. And they are part of an even broader conservative-led effort to weaken the government’s ability to regulate anything.

“I think the West Virginia case can be seen as part of a larger trend that is aimed at limiting the ability of EPA and other agencies to protect health, safety and the environment,” he said. William Boyd, a professor of environmental law at the University of California at Los Angeles. “This starts at the top with the Supreme Court, but it will flow through the federal judiciary as decisions pile up and the case law it has taken over the past half century to accommodate the regulatory state is diminished and eroded.”

Many of these other issues are still ongoing, but depending on how they are decided, they could further erode the government’s tools to tackle the most pressing environmental problems. But there are other ways to tackle environmental problems that remain intact for now.

The West Virginia v. EPA decision joins a growing list of recent legal attacks on the environment

Under President Trump, the EPA launched a campaign to undo or undermine a long list of environmental regulations. In many cases, those actions have been blocked by courts, including Trump’s mid-term clean power plan replacement. West Virginia v. EPA case.

But Trump managed to do more than… 200 federal judges, including three Supreme Court justices, and the consequences are becoming apparent. With more favorable judges, some Republican state governments have seized the opportunity to challenge environmental laws.

Here are some of the recent legal challenges to the government’s ability to protect the environment:

  • Republican Attorneys General in 17 States sued the EPA in an effort to end California’s waiver of the Clean air convention, a law first passed by Congress in 1963 that allows the state to set its own strict emission standards for cars and trucks. Transportation is the largest source of greenhouse gases in the US, and California’s status as the most populous state and largest auto market makes it a de facto nationwide emissions policy maker.
  • fourteen states sued the Biden administration in March to end a lull in leasing new oil and gas on federal lands, a vital part of the president’s climate agenda to keep those fossil fuels in the ground.
  • The fossil fuel industry, right-wing groups and Republican lawmakers are trying to block a new Securities and Exchange Commission rule requiring publicly traded companies to disclose climate risks. business in the short and medium term.
  • In October, the Supreme Court will hear pleas in a case that will decide whether wetlands are classified as “United States waters” under the Clean Water Act. the pronounciation can have major consequences for how the EPA and the US Army Corps of Engineers regulate pollution in US waterways.

These decisions are likely to have a negative impact on Americans’ lives. That includes everything from more hospitalizations and deaths caused by air pollution to billions of dollars in damage related to extreme weather that American homes and infrastructure are unprepared for.

There are other ways to promote environmental protection

Not every recent ruling has undermined environmental laws. In May, the Supreme Court upheld the use of the social costs of carbon as the basis for climate change regulation. The social cost of carbon puts a dollar amount on the amount of damage to society caused by emitting one tonne of carbon dioxide.

And while the Supreme Court nerfed the EPA’s sharpest tools for cutting emissions, it left intact the agency’s core authority to regulate greenhouse gas emissions. the 2007 Massachusetts v. Environmental Protection Agency The Supreme Court ruling still says the EPA must come up with rules to reduce carbon dioxide and methane pollution.

But instead of relying on the goodwill of judges going forward, there are other levers the Biden administration can use to advance its environmental agenda.

For example under the Toxic Substances Control Act from 1976 and the 2016 update, the Lautenberg Chemical Safety Act, the EPA can evaluate and regulate both new and existing chemicals that may pose risks to human health and the environment. Since global warming from greenhouse gases threatens health, this could be a potential tool to limit carbon dioxide.

Alternatively, with a little clever legal maneuvering, the EPA could (theoretically) rely on another provision in the Clean air convention to control greenhouse gases. If the Brookings setting explained in 2016Section 115 of the Clean Air Act forces the EPA to look into cases where pollution from the United States could “endanger” citizens of other countries. If those countries, in turn, take steps to ensure their emissions don’t harm the United States, the EPA must inform US state governors where those emissions come from so they can take steps to reduce those emissions.

lawyers to argue that since greenhouse gases contribute to the global problem of climate change, Section 115 gives the EPA broad authority to regulate those gases. Rather than the EPA imposing industry-wide regulations, which are invalidated by the Supreme Court ruling, Section 115 operates within the framework of state implementation plans, which are developed by states and not subject to congressional oversight.

The Biden Administration may also work with states to develop state-level environmental policies that, when formulated, could have a similar effect to federal regulations from the EPA. Some states could become de facto regulators for industries with a large presence within their borders, similar to how California regulates vehicle emissions. But that process would be time-consuming, and the government will no doubt find it difficult to gain support from states controlled by Republican lawmakers who deny the reality of climate change.

The White House also uses executive orders to advance climate policy. Earlier this month, President Biden announced that he would use the Defense Production Act to build clean energy technologies, including solar panels and heat pumps. He has also signed executive orders to… protect forestsuntil purchasing zero-emission energy and vehiclesand to make climate change priority in foreign policy† The downside of executive orders is that the next president can overturn them.

Outside of the federal government, states also have the power to set their own environmental policies, such as standards for renewable energy portfolios or the trading of greenhouse gas emission allowances.

But reducing the EPA’s power to regulate emissions from power plants still hits the U.S. climate change ambitions, leaving fewer options to deal with a growing crisis. as the window of action slams shut.


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