The Environmental Protection Agency (EPA) exists for one reason – protect the environment (duh … the clue is in the name). In other words it is all about the creation of a far better world.
Who could possibly object to clean air, and clean drinkable water?
The Gov of Michigan in 2014 perhaps. Just ask the folks in Flint, they just love him.
Those motivated by greed tend to be those that lean away from clean air and water. The desire to sacrifice all that for the sake of a few more bucks is not exactly the high moral ground, hence such opposition will cloak itself with political terms such as “federal overreach” or similar.
Translation – How dare a federal agency raise an objection to my power plant belching out tons of poisonous fumes.
Speaking of overreach and intrusion into an area where they have no expertise, let’s now cover what SCOTUS has just done to the EPA.
So what is the story, what has happened?
SCOTUS gives ruling for: West Virginia v. EPA
The science is very very clear, if we are to avert a total climate disaster on a global scale then we must act now. The remit of the EPA, via the Clean Air Act, is to regulate carbon dioxide emissions.
The essence of what is happened is this – SCOTUS says “Nope, sorry EPA you can’t do that”
Well OK, that’s a tad simplistic, let’s break it down a bit.
Back in 2007 there was a Supreme Court case – Massachusetts v. EP. At that time SCOTUS ruled that the EPA had a mandate from Congress to regulate greenhouse gas emissions. It addition, they also pointed out that the EPA could be sued for failing to do this. That decision was a huge leap forward for environmental protection.
Roll forward to 2022. The specific part of the Clean Air Act that was the subject of the latest SCOTUS ruling is § 7411(d). This specifically relates to the authority of the EPA to ask states for a plan to regulate emissions. That has now been restricted.
A great deal happened between 2007 and now, especially during the Trump era. I’ll not bore you with all the details, but if curious, then you can find much of it here.
What is not mentioned at that link is that Trump appointed Scott Pruitt to run the EPA, and he did what he does best, he rapidly ran it into the ground. That saga is indeed a very sorry one that ticks many boxes you never want to see ticks against. The two big ones were these –
- Incompetence
- Corruption
Don’t just take my word on this, check out his Wikipedia biography. The essence of it all was this, he greatly damaged the EPA’s ability to function.
Once he was gone they bounced back and proceeded to get back on mission.
“No no no” say the fossil fuel states, “we can’t have you inflicting emission standards upon us”.
Hence the case.
The SCOTUS Case
Various states, all Red, along with various power companies clubbed together to argue that the EPA had too much power in regulating CO2 emissions.
They argued that the way § 7411(d) within the Clean Air Act was being used meant that it …
“will impose costs we can never recoup because E.P.A., the state, and others will be forced to sink even more years and resources into an enterprise that is — at best — legally uncertain. The court should intervene now.”
Translation: We don’t like Clean Air regulations , fuck the climate, just make all that go away.
On June 30, 2020 SCOTUS did their bidding and ruled that the EPA does not have Congressional authority under § 7411(d) to issue such mandates.
As with other recent examples, the justices that dissented, Elena Kagan, Stephen Breyer, and Sonia Sotomayor pointed out the rather obvious …
The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent
In other words …
- Congress had already explicitly authorised the EPA to act. SCOTUS was doing the bidding of the petitioners and is now stepping in to stop that
- When it comes to Climate Change, SCOTUS are clueless idiots … I’m not making that up, the words within the dissent are literally that SCOTUS … “does not have a clue about how to address climate change“.
Now What?
The Climate Change Plan that relied upon getting to Clean Power sources has been basically f**ked … to a degree, not totally.
It is not totally and completely “Game over”, that is the good news.
What was feared is that SCOTUS would degree that the EPA had no authority to address climate change in any way. Thankfully, SCOTUS did not reverse its 2007 decision (Massachusetts v. EPA) that the EPA has the authority to regulate greenhouse gases as pollutants under the Clean Air Act.
What exactly has happened?
The EPA now can’t set carbon limits for each state. The idea of that would be to legally motivate states to switch to cleaner power.
There are still things that the EPA can mandate. For existing power stations that can still use the Clean Air Act to seek …
- Emission reduction technology on older plants – for example carbon capture and/or carbon sequestration
- Converting coal plants to operate off natural gas (it burns cleaner than coal)
Doing that will help to reduce CO2 by 10% to 15% … but alas, not the planned 32% reduction.
In other words what happened is not a complete halt of the EPA dealing with CO2, just a narrowing of their power. They are still empowered by the Clean Air Act to regulate what happens within existing power stations, but only up to the fence line. That fence line is where the court has ruled that their remit stops.
Given the seriousness of what we face, even that constraint is not good.
When climate scientists, the folks who have access to all the raw data, are completely and totally freaking out, and pleading for decisive meaningful action, then it might be wise to consider paying attention to them.
“While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change, We will move forward to provide certainty and transparency for the energy sector, which will support the industry’s ongoing efforts to grow our clean energy economy.”
EPA Administrator Michael Regan
What can we do about SCOTUS?
There is an opportunity coming up in Nov to sort them out.
The UK politician Tony Benn would famously ask these five questions wherever he went …
- What power have you got?
- Where did you get it from?
- In whose interests do you use it?
- To whom are you accountable?
- How do we get rid of you?
We really need to roll those questions out and use them to address what is now a rogue SCOTUS.
Things I would personally love to see include …
- Impose fixed term limits for justices
- Expand the court from 9 by 4 more justices to 13, one for each circuit
Beyond SCOTUS
The science is clear. We must reduce our CO2 to avoid the catastrophic consequences of climate change.
The Final Punch Line
Those concerned that what the EPA was doing would eat into their financial interests are now faced with an EPA that has been restricted to a degree in what it can mandate to deal with CO2.
The ironic twist is that the options that the EPA now have left are probably more restrictive and far more expensive that the cap-and-trade option that SCOTUS just took off the table.
With Cap-and-Trade, each state could have set CO2 limits and shifted power generation to cleaner sources. SCOTUS said, nope, EPA you can’t mandate that, you can only impose limitations on emissions within the fence line of each individual power station, and so if that is all they have left, then that is what the EPA will now be forced to do. That really will cost a lot more.
Some could see this and did file amicus briefs with SCOTUS pointing this out, but alas, the fossil fuel lobby, driven by coal mining interests, won the day, and so have now potentially picked up a far bigger bill.