President Joe Biden’s efforts to position the United States at the forefront of the global fight against climate change have been dealt another major blow, as the conservative supermajority on the Supreme Court continues to flex its muscle with a run of historic decisions.
In a 6-3 ruling on Thursday, on a case known as West Virginia v. EPA, the court severely limited the ability of the Environmental Protection Agency to require existing power plants to cut greenhouse-gas emissions. It found that plans to do so would be unconstitutional, absent the policy being explicitly mandated by a Congress in which Republicans would likely block it.
The decision will add to Mr. Biden’s struggles in putting his country on the path for its power grid – which still relies heavily on coal as well as natural gas, and is responsible for nearly one-third of all U.S. greenhouse gas emissions – to be emissions-free by 2035.
But its implications go even further, highlighting the ideological fissures that threaten to completely derail Mr. Biden’s broader climate agenda. It will place heavy pressure on the President, already under fire from progressives for a relatively cautious reaction to last week’s Supreme Court ruling striking down abortion rights, to find new ways to introduce emissions-reducing policies.
At the same time, Thursday’s ruling leaves major uncertainty about how much legal leeway his administration will have to implement such policies, and even whether some existing U.S. environmental protections could be rolled back.
While climate activists and environmental lawyers lamented that the court took away one of the administration’s most effective ways to cut pollution, by pre-emptively banning in-the-works plans to require utilities to reduce coal reliance, the decision did not in itself go quite as far as some had feared.
“This decision is damaging but not devastating,” said Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia University. “EPA can still regulate emissions from motor vehicles, oil and gas wells, factories and other sources … and even [on coal-power plants], it has other tools, such as regulating the conventional air pollutants they emit.”
Concerns that the court might use this ruling to take aim at some of those other powers had been fuelled both by its recent aggressiveness on other fronts, and by the fact that it surprised experts by choosing to take on this case – which dates back to former president Barack Obama’s long-dead Clean Power Plan – in the first place.
“The cutback is not as severe as I was concerned that it would be,” said Dan Farber, the director of the Center for Law, Energy and the Environment at the University of California, Berkeley.
Prof. Farber suggested that while he personally disagreed with the decision, it was not necessarily an overreach.
“I think people recognized that it was really different than anything EPA had done before,” he said of using the 1970 Clean Air Act to require a wide-scale curbing of coal, “and that made it legally vulnerable.”
Others, however, pointed to the court’s invocation of the “major questions doctrine” as an indication that it may be gearing up to strike down other attempts at setting climate policy. It’s a judicial interpretation that federal agencies cannot act on significant policy matters absent specific congressional direction, which had not previously factored into environmental decisions.
The precedent contributes to the uncertainty about where climate policy now stands. Republican-governed states and other interests aligned with the fossil-fuel industry might now challenge other environmental rules, and ultimately the Supreme Court will get to decide what qualifies as administrative overreach.
“It depends on how the court applies the major questions doctrine in other cases,” said Richard Revesz, a professor at New York University’s law school, “and we just don’t know yet.”
Meanwhile, Mr. Biden will be looking for ways to keep his 2035 clean-power target in sight, including by turning to the Congress unlikely to greenlight greater reach by the EPA.
His best near-term hope is to finally get at least some of his administration’s proposed $550-billion in climate-related spending, largely in the form of tax credits for renewable energy, through the Senate.
To date, that package has been blocked by Joe Manchin, the coal-friendly West Virginia Democrat who holds the Senate’s swing vote. But continuing negotiations between the White House and Mr. Manchin may be given added urgency by Thursday’s ruling.
Mr. Biden also promised, in a statement responding to the ruling, to “not relent in using my lawful authorities to protect public health and tackle the climate crisis,” hinting at testing out other regulatory avenues.
And in this fall’s midterm election campaign, his Democrats will likely invoke this decision, alongside the abortion-rights rollback and a blockage of gun restrictions, to argue that they need stronger congressional control to overcome a top court stacked with conservatives thwarting policies that most Americans want.
At the moment, however, Mr. Biden’s climate push has hit its lowest point of his presidency thus far.
“We know many of the people in the government are trying,” said Claire Healy, the Washington director of the international climate think-tank, E3G. But she pointed to the need for a bold response to the setback for the U.S. to maintain credibility.
That includes on the international stage, where his administration continues to urge other countries to lower emissions while being thwarted in its own efforts.
”At some point,” Ms. Healy said, “that’s going to run its course if the U.S. can’t get its own house in order.”
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