What the West Virginia v. EPA decision means for climate action
The ruling strips the executive branch of critical regulatory authority when it comes to reducing emissions. That means climate advocates need to concentrate action on 1) Congress and 2) the states.
The case: The legal challenge in West Virginia v. EPA originated during the Obama administration’s attempt to implement the former president’s Clean Power Plan. A group of fossil fuel-producing states argued that the administration did not have the regulatory authority to set broad emissions caps on stationary power plants because it was not explicitly granted by Congress. Supreme Court precedent has granted deference to regulatory agencies when Congress doesn’t clarify one way or the other (this originated in another environmental case, Chevron USA v. NRDC). The Chevron case is used to justify regulatory authority across many federal agencies, not just the ones regulating the energy sector.
The ruling: In a 6-3 vote, the Court ruled that the Clean Air Act does not grant the EPA the broad authority to cap power plant emissions by forcing fossil fuel power plants to shift generation to clean fuel sources. The Court did not explicitly overturn the “Chevron doctrine” described above, but it introduced a new “major questions” doctrine that could be used as the basis for future lawsuits challenging regulatory authority. The ruling is bad news for supporters of a federal cap-and-trade system, which requires a regulatory body to set the “cap,” but other market-based solutions like a carbon tax are still on the table.
What the EPA can still do: For the time being, the EPA retains its ability to regulate emissions at individual power plants and can still require specific technologies to be deployed, as long as it’s not forcing a plant to shift generation from one fuel source to another. For example, it can still require power plants to use carbon capture or hydrogen alongside its fossil fuel production, and it could tighten efficiency standards. The agency has already started its new emissions rule-making process and could set emissions requirements for new power plants while getting creative with respect to regulating existing plants.
What Congress can do: Pass a law that explicitly empowers EPA to regulate greenhouse gas emissions at existing power plants. It’s difficult to see how this could pass muster in 2022 as a budget reconciliation provision, meaning the pro-climate majority must be expanded in the Senate to eliminate the filibuster, and the pro-climate majority in the House must be preserved.
What the states can do: State legislatures can pass 100% clean energy targets that phase out fossil fuel generation using the legislature’s preferred method (mandates, tax incentives, hybrid incentivized performance standards, etc). To help meet those 100% clean targets, legislatures can also empower state public utilities commissions to regulate greenhouse gas emissions, which we’ve already seen in Connecticut, Massachusetts, and Washington, DC. This second approach is like a mini version of the option listed above, in which Congress explicitly authorizes EPA to do the same.
What you can do:
Urge your senators and congressional representative to pass legislation that authorizes the executive branch to properly regulate GHGs from power plants. (Consider scheduling a constituent meeting with their staff).
Urge your state legislators to pass a 100% clean energy target; if your state has already done this, urge them to modernize the public utilities commission so it can properly regulate utilities.
Leverage the influence of key stakeholders at both the national and state level. Have your state legislator or mayor contact the congressional delegation. Urge your mayor, city councilors, or county commissioner to lobby your state legislator. Call your electric utility company and urge them to lobby both levels of government.
Get involved in elections at any level of government. You don’t have to live in a specific jurisdiction to call and write to voters, canvass, or fundraise in that place. Pro-climate majorities are the only way we can override this ruling with the power of legislation.
Use the power of your networks and galvanize public support. Write an op-ed or letter to the editor and mention your members of Congress or state legislators by name. If you work for a large company, push your C-suite to contact Congress and speak out on the economic consequences of inaction. And get your friends, family, and colleagues talking about this issue and invite others to do the work alongside you.
Photo by Ian Hutchinson on Unsplash.