The Supreme Court’s Thursday ruling on West Virginia v. EPA is a blow to the Environmental Protection Agency’s ability to regulate carbon emissions.
In the majority opinion, Chief Justice John Roberts explained that under this ruling, an agency like the EPA “must point to clear congressional authorization when it seeks to regulate ‘a significant portion of the American economy.’”
The West Virginia case began as a backlash to the Obama administration’s 2015 Clean Power Plan. The plan was created to enforce cutting carbon emissions throughout the country.
Although the plan was repealed before it could ever be implemented, the states and coal industry companies who challenged it moved the case forward. Their argument: The EPA’s aggressive action to cut emissions, outlined in the Clean Power Plan, was far beyond its actual authority.
Today’s decision confirms that. In a statement, California Governor Gavin Newsom characterized the ruling as “kneecapping the federal government’s basic ability to tackle climate change,” and encouraged states to lead efforts to cut greenhouse gas emissions.
CapRadio spoke with Dan Farber, director of UC Berkeley’s center for Law, Energy and Environment, to explain what the decision means for the country’s fight against climate change.
What was your first thought when you saw the ruling this morning?
I actually felt some relief. Everyone expected EPA to lose the case, and they did. But I think given that reality, this was about as narrow a ruling as we could hope for. And I'm hopeful that EPA does have a path forward that will allow it to comply with the ruling but still do something serious about reducing emissions.
The Trump administration had an ultra-narrow interpretation of the law that really didn't allow [EPA] to do anything at all, and I think the court didn't endorse that.
It sounds like this decision wasn’t a surprise for the people following the case.
Right. You could say that the handwriting was on the wall some years ago, because when the Obama administration first issued the Clean Power Plan, which is what this case was really about, a 5 to 4 decision by the Supreme Court kept it from going into effect.
That was a really unusual intervention by the Supreme Court. It made it clear that at that time, at least, there were five out of the nine justices who had very serious doubts about the regulation. And the court has only gotten more conservative since then.
So while I continue to think that the Clean Power Plan should have been upheld by the court, it would have almost seemed miraculous to me at this point if that had happened. As many people said, the question is not whether EPA loses, but how badly they lose.
What exactly did the EPA lose?
The court indicates that agencies in general, not just EPA, need to be careful to stay in their lanes. As long as they stick to the kinds of regulations that they've done in the past — even if those regulations, you know, have a tremendous impact — I think the case says that they're generally okay with that.
It's only when the agency does something that looks like a total departure, without any clear language to support it, that the courts can intervene. That could cause issues for other agencies in other cases.
It sounds like agencies still have regulatory power, but the court is saying that there needs to be oversight if what they’re addressing is something big and new.
Yeah, that's right in a nutshell. If it's big and new, really big and really new, I would say then agencies can have a problem. But I think what the court's really worried about is that agencies will take some obscure piece of language in the law and then, all of a sudden, try to put that to revolutionary use. The court is making it clear that they can't do that.
Roberts emphasized that the Clean Power Plan was really an unprecedented regulation and that EPA was going beyond controlling emissions to trying to, in his view, take over how the power grid was going to run. In a way, I think that's helpful, because it provides a signal that something that seems less drastic might be acceptable.
What constitutes big and new?
That's what all of us have been wondering. It's not 100% clear, but I think we're beginning to get at least a list of a half dozen factors to look at. Those factors are still kind of subjective, but I think everybody recognized that what EPA was trying to do with this regulation was a big departure and quite different than what they had done in the past.
Now, that doesn't bother me as much as it obviously bothers some of the justices on the Supreme Court. But it's not like everybody thought that, oh, this is obviously OK for EPA to do. Everybody knew that EPA was really in new territory.
For environmental advocates who might be new to the case, this ruling could seem particularly devastating. But this wasn’t the worst-case scenario for the EPA, right?
A worst-case scenario would have been the [court ruling] that EPA has no power to regulate greenhouse gasses at all, under any of its authorities. Alternatively, it could have ruled that EPA can't really do anything that has a high ticket price, where industry is paying a lot of money, unless it has clear authority. And since EPA does a lot of things that are in the billion-dollar range, that would be a big problem.
One thing that's important about this case is that Congress can fix this. Congress can pass its own regulations for carbon, for climate change, or Congress could clearly give the EPA the authority to do this. So there are ultimate options. We all know how dysfunctional Congress is, but you know, sometimes they actually do get their act together.
So, this could change. But for climate action now, what does it mean?
It takes away some of the urgency and it will allow the fossil fuel industry to delay longer, especially in some places where the industry is really strong.
States that don't want to take action, [that] would otherwise have had to come up with plans to reduce carbon emissions primarily by shifting away from coal to other sources of energy — those states won't have to go through that right now.
Do you think this will change much for California, a state that has generally tried to lower its carbon emissions?
I don't think much will change here. It would have been helpful in terms of pushing some of our neighboring states, where we get electricity, to move more quickly toward a cleaner grid. From that point of view, we would have liked to have that regulation in place. But the bulk of what we do doesn't depend on that.
How do you think the EPA might change as a result of this?
I think what we'll see as a general strategy is that EPA and other agencies will focus on doing a bunch of small things as opposed to one big thing. If you do one big thing, that's more vulnerable, but if you take a lot of smaller actions that all push in the same direction, it's a lot safer.
Although I don't see Congress taking direct action to authorize EPA in the very near future, I think we can still hope for congressional action that will help bolster the use of electric vehicles and help encourage an even more rapid expansion of renewable energy.
So the decision today is a significant loss, but it's only one battle in a much bigger campaign.
How are you feeling about the ruling and what it means for our climate’s future?
I think we should all be unhappy about this ruling. It's a setback at a time [when] we can't really afford setbacks.
But we should also remember that fighting climate change isn’t a battle that's going to be won on any one day and with any one regulation. We should be angry about the setback, but it shouldn't disable us from continuing with all the other things that we can still do.
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