By: James Osborne – Houston Chronicle – The U.S. Supreme Court ruled Thursday that an Obama-era rule forcing power plants to curtail carbon emissions exceeded limits on executive power, restricting the ability of President Joe Biden and future administrations to fight climate change.
In a 6-3 ruling, the court said under existing federal pollution laws the Environmental Protection Agency could not set industry-wide limits on carbon emissions, calling the EPA’s rulemaking, “unprecedented” and a “fundamental revision” of the Clean Air Act, which Congress last updated in 1990.
“Precedent teaches that there are ‘extraordinary cases’ in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority,” wrote Chief Justice John Roberts.
The ruling has implications far beyond the nation’s power sector, extending to the oil and gas industry, a pillar of the Texas economy.
From refineries along the Houston Ship Channel to oil and gas fields in West Texas, the industry and the fuels it produces are among the biggest source of greenhouse gases in the country.
The court did not go as far as some in the oil industry might have hoped, leaving intact federal agencies’ authority to regulate greenhouse gas emissions. But the ruling potentially signaled a broader skepticism among the court’s conservative majority on climate regulation at-large, said David Adelman, a law professor at the University of Texas.
“You don’t have to overturn Massachusetts vs. EPA in one fell swoop. You can do it in little bits that are hard for the general public to understand,” he said, referring to the 2007 Supreme Court ruling that EPA has authority to regulate greenhouse gas emissions. “With this court, it’s more than plausible that’s the direction they would take.”
The decision comes as the Biden administration is seeking to set the nation on the path to net-zero emissions by mid century, as scientists say is necessary to avoid cataclysmic destruction from climate change.
The first major climate case to be heard by the Supreme Court since conservatives gained a wide majority during the Trump administration, the case is seen as a bellwether on how far the nation’s highest court will allow the White House to go in addressing climate change.
Writing in dissent, Justice Elana Kagan, joined by justices Stephen Breyer and Sonia Sotomayor, said today’s decision, “strips the EPA of of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.'”
With Congress deadlocked on climate legislation, Biden and former president Barack Obama relied on authority granted them under the Clean Air Act to order industry to curb greenhouse gas emissions.
Republicans in states like Texas have sought to block that strategy, maintaining that the White House was overstepping its authority and that it was up to Congress to decide how to address climate change.
Last year a group of Republican state attorneys general, including Ken Paxton of Texas, filed a lawsuit challenging the legality of the Obama-era rule forcing power plants to reduce emissions, which the Supreme Court already stayed in 2016 and was left dormant during the Trump administration.
Texas Governor Greg Abbott was one of a number Republicans cheering the ruling Thursday.
“Today’s landmark victory against an out-of-control administration is also a big win for Americans who worry about skyrocketing energy costs due to expensive federal regulations that threaten our energy industry,” he said in a statement. “President Biden cannot keep attacking the energy industry and the hardworking men and women who power our nation.”
So far Congress has struggled to find agreement on climate change, with many Democrats looking for sweeping limits on carbon emissions, while Republicans largely seek to limit federal intervention to funding for the development of clean energy technology,
One exception is a bipartisan group of senators that includes Joe Manchin, the West Virginia Democrat, and Mitt Romney, the Utah Republican, who have been debating policies including a carbon fee on imports. Following Thursday’s ruling, some members of that group called for Congress to come to agreement on climate change.
“The Supreme Court made the right choice putting the ball in Congress’ court. We must address the connection between U.S. energy development, affordability, and lowering global emissions,” said Sen. Bill Cassidy, R-Louis.
While Thursday’s ruling was directed at EPA’s jurisdiction over the power sector, lawyers were already predicting other polluting industries would use the ruling to challenge federal efforts to control their emissions.
Asked for comment, a spokesperson for the American Petroleum Institute, the oil sector’s largest lobbying group, declined to address the ruling itself but said the industry would, “continue to work with policymakers across the federal government in support of smart regulations that build on the progress we’ve made on CO2 emissions reductions.”
Power sector emissions are already declining, with wind and solar installations far outpacing the development of traditional power generation. Coal plants, among the biggest emitters of greenhouse gases, are being replaced by cleaner-burning natural gas turbines.
But this progress is not happening fast enough to achieve the emissions targets that scientists say are necessary to avoid the worst effects of climate change.
The Biden administration has been working on a revised version of Obama’s Clean Power Plan, with the goal of achieving a net-zero emissions power sector by 2030.
EPA Administrator Michael Regan said Thursday that work would continue, commenting the agency was, “committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change.”
One option would be to use the EPA’s established authority over other forms of air pollution to indirectly put a check on carbon dioxide emissions. Another strategy would be to begin requiring coal and natural gas-fired power plants to install carbon capture equipment.
Whether the Supreme Court would allow such a regulation remains to be seen, said Victor Flatt, a law professor at the University of Houston.
“That is really hard to predict and it might actually depend on how expensive and doable (carbon capture) is,” he said. “In this ruling, they’re requiring Congress to be more explicit in regulating greenhouse gas emissions.”
