The U.S. electric power industry long has faced sharper curbs on gas emissions. Now it's the nation's half-century old regulatory agency—and possibly others—that have been brought to heel.
In a long-awaited decision (West Virginia vs. EPA), the Supreme Court last week cut the power of the Environmental Protection Agency to develop or enforce specific rules on greenhouse gases—and in its reasoning indicated also a new willingness to restrict all agencies in moving expansively, under this and future presidential administrations.
The program challenged in the litigation had been dubbed the Clean Power Plan.
“The Clean Power Plan established emission guidelines for states to follow in limiting carbon dioxide (CO2) emissions from existing power plants,” as EPA succinctly had summarized the initiative, which first saw light of day in 2015, under the Obama administration.
The EPA is legally empowered to set a range of standards that industries must follow, in order to restrict multiple health hazards their operations pose to the public. Over the last decade, under authority of some of the agency’s cornerstone legislation—the Clean Air Act of 1970—the EPA had honed new science-based limits on CO2 gas emissions from electric power plants, with the aim of further reducing the dangers to the public such emissions present.
Implementation of the program had already been halted by the Trump administration in 2019. Meanwhile the current litigation continued to advance through the courts.
The Biden administration was hoping to pursue the Clean Power Plan, and it registered a sour reaction to the ruling.
“The Supreme Court’s ruling in West Virginia vs. EPA is another devastating decision that aims to take our country backwards,” the president stated. “While this decision risks damaging our nation’s ability to keep our air clean and combat climate change, I will not relent in using my lawful authorities to protect public health and tackle the climate crisis.”
“I have directed my legal team to work with the Department of Justice and affected agencies to review this decision carefully and find ways that we can, under federal law, continue protecting Americans from harmful pollution, including pollution that causes climate change,” he continued.
EPA had constructed its plan on the legal basis of a little-used provision of the 1970 law, Section 111(d). As noted, the Trump administration had stalled the program. But the Court, acting under the umbrella of “major cases doctrine” determined it should proceed and rule on the litigation brought by West Virginia.
The Court found the agency had exceeded its authority, and that for such a program to be allowed, Congress would have to separately enact legislation to have a proper legal foundation to expand the regulation of industrial emissions—in this case those of the electric power industry—so profoundly. The agency, the Court wrote in critiquing EPA’s original plans, “must point to ‘clear congressional authorization’ for the authority it claims”—something the Court noted it had not seen the necessity to do.
The decision in the case, according to some expert observers and advocates, signals a Court poised to limit not just EPA’s power, but the ability of all regulatory agencies to move aggressively in carrying out their respective missions. (Other expert commentaties begged to differ, and did not foresee a major anti-regulatory wave coming—at least not one stemming from the Court’s reasoning in this case.)
For the moment, however, though the decision restricts EPA's reach it remains not immediately clear exactly what the ruling portends for other agencies—or for the (already) shrinking coal and gas segments of the electric power generation industry.
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