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Reviews | The Supreme Court in the face of climate change

With Congress doing little on climate change, President Biden must use his executive authority to regulate greenhouse gas emissions in the US economy.

The Supreme Court seems determined to thwart it.

In a case to be heard on February 28, the court appears set to curb the Environmental Protection Agency’s legal authority to limit carbon pollution from power plants and, in doing so, thwart efforts country to slow the rate of climate change.

The justices scrambled to take the case brought by coal companies and Republican-led states, even though there are no current federal rules regulating greenhouse gas emissions from power plants, and no company or state. is required to take measures to control these emissions. . No power company has asked the court for its review, and in fact several of the nation’s largest power companies have objected to the judges adding the case to their docket.

The Biden administration argues that the court should wait for the EPA to issue a rule, as it plans to do; otherwise, any decision would be an advisory opinion based on an assumption, which the court has repeatedly said the Constitution does not allow. But the state of West Virginia and its fellow petitioners, including 17 other states and coal and mining companies, argue that any agency rules aimed at reducing carbon from the electric power sector will have such enormous consequences that the court should act now to restrict the authority of the agency. .

In a brief to the court, those states warned in scaremongering language against empowering the agency to “re-engineer American industry.” The plaintiffs want a sweeping ruling to override the EPA’s power to set meaningful emissions standards.

Just by accepting the case, the court suggested where it’s headed – which is to limit the EPA’s flexibility. The conservative majority on the court has been deeply skeptical of federal regulatory authority unless Congress has been extremely explicit in its instructions about what agencies can do. But Congress cannot anticipate every possible situation and, for good reason, often delegates broad authority to agencies, letting them make expert judgments in technical areas.

The Supreme Court has repeatedly ruled that the Clean Air Act authorizes the EPA to regulate greenhouse gas emissions, including those from power plants. Congress asked the EPA to choose the best system to reduce emissions.

Yet the court might be so eager to restrict climate regulation under the Clean Air Act that it might be willing to overturn its own precedents, ignore fundamental constitutional principles requiring plaintiffs to demonstrate concrete harm, and ignore business needs of the affected industry. In doing so, the court may inadvertently harm the electricity sector more than it helps it, by excluding practical, inexpensive or flexible strategies. that industry and many states support to reduce emissions.

Burning fossil fuels to generate electricity is responsible for around 25% of the country’s greenhouse gas emissions, behind transport alone. Substantial reductions in power plant emissions are essential if the United States is to meet its Paris Agreement commitment to reduce economy-wide greenhouse gas emissions by 50-52% below. 2005 levels by 2030. Mr. Biden has set a goal to eliminate these emissions. of electricity production by 2035.

He was not helped when Congress scrapped a clean electricity agenda from the bipartisan infrastructure bill it passed last year, which left President Biden to rely primarily on the EPA to develop rules to meet the nation’s climate goals under the Clean Air Act.

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The case is complicated, but the underlying question comes down to this: Is the EPA’s regulatory authority over power plant emissions narrowly limited to requiring only negligible improvements at each source? , which would produce minimal, if any, emission reductions? This is what the coal companies and the states that are carrying this case want.

Or can the agency use a broader approach based on other things power plants can do to reduce emissions, for example, combining coal with other cleaner fuels like natural gas, biogas and hydrogen; integrating renewable energies; use technology that captures emissions before they leave the stack; and allowing companies to trade emission credits or average emission reductions across a company’s entire fleet? That’s what the EPA and many power companies want. They also want states to be free to consider such measures when deciding how best to meet federal emissions limits.

The legal saga leading to this point dates back to the Obama administration, when the EPA passed what was called the Clean Power Plan. The rule required power plants to reduce their emissions by 32% from their 2005 levels by 2030.

But the Supreme Court temporarily blocked it, and the Trump administration later repealed it, replacing it with a much weaker rule. Then, before Mr. Trump left office, the United States Court of Appeals for the District of Columbia Circuit rejected Trump’s rule, saying his narrow view of what the EPA could do under of the Clean Air Act was wrong. The court also ordered, and all parties agreed, that no power plant regulations would take effect until the EPA issued a new rule.

Normally, the case would have ended there. The Biden administration is currently developing its own standards for power plants with input from industry and other outcome stakeholders.

The Supreme Court generally does not review a hypothetical or proposed settlement until it is final, and for good reason. Without the benefit of an agency’s reflection and a detailed administrative record of how it reached its decision, the court runs the risk that its abstract decision will have unintended consequences, including harm to the affected industry.

The court has a way out. It can dismiss the case because, with no rule in place, no one suffers legal harm – a requirement known as standing, which is necessary for the court to assert jurisdiction. This would preserve everyone’s right to sue in the future while allowing the EPA to craft a new rule.

It is wise to wait. Economic conditions and technology have evolved considerably over the past decade. The court should allow the EPA to make a new assessment of what power plants can reasonably do to reduce carbon emissions using available technologies at an acceptable cost.

Many players in the electricity industry support this approach. Ten power companies, with operations in virtually every state, have sided with the Biden administration. The trade association representing all US investor-owned utilities filed a brief urging the court to retain the authority of the EPA. These companies need stable and predictable federal rules to make economic decisions and plan investments.

The coal industry likes to argue that without court intervention and direction, the EPA will go wild. But the record shows the agency tends to underestimate what companies can do to control pollution. The electricity sector exceeded Clean Power Plan targets years in advance, even without a rule in place, showing that these standards were neither too costly nor transformative.

Judges should hold back and let the regulatory process unfold.

Jody Freeman is a professor at Harvard Law School, where she teaches environmental and administrative law. She served as energy and climate change adviser to the Obama White House in 2009 and 2010 and advised Biden’s transition team. She is an independent director on the board of ConocoPhillips, an oil and natural gas producer.