The outcome of these cases could determine whether the fight for US environmental policy shifts decisively to the states, where some will weaken protections as others continue to aim for strict limits on greenhouse gas emissions and other forms of pollution.
“West Virginia could end up being part of a set of cases where this conservative Supreme Court generally reduces federal regulatory power to tackle new issues,” said William Buzbee, faculty director of the program. Environmental Law and Policy from the Georgetown University Law Center.
“Of course, states can go beyond what federal laws require,” he added. “Many states do this. But many states do not.
During its fall term beginning in October, the Supreme Court will pick up on a challenge to the Clean Water Act that could narrow the scope of the law in a way that companies and developers have long sought. In the lower courts, meanwhile, Republican attorneys general are fighting to stop the Biden administration from factoring climate change into major decisions and reducing climate pollutants from vehicle tailpipes.
In the majority opinion in West Virginia, Chief Justice John G. Roberts Jr. wrote that the EPA can only make sweeping changes to the nation’s power sector with the express approval of Congress. But lawmakers didn’t grant the agency that, given partisan divisions on environmental issues in recent decades.
The EPA “must indicate ‘clear congressional authorization’ for the power it claims,” Roberts wrote in the majority opinion, which was joined by Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh. and Clarence Thomas.
Katie Tubb, a researcher at the Heritage Foundation, a conservative think tank, said the court was right to restrict the powers of the EPA.
“Many on the left want the EPA to regulate emissions to achieve a radical climate agenda,” Tubb said. “But it matters in this country who makes those decisions. From my point of view, it is important that the US representatives be those…rather than unelected bureaucrats of the EPA.
Harvard Law School professor Jody Freeman said the court could have gone further by limiting the EPA’s authority. The majority allowed the agency to continue regulating carbon emissions from power plants — it simply cannot do that by forcing utility companies to switch from coal to renewables.
There’s “something of a silver lining here,” Freeman said. “It leaves a path for the EPA to continue to set meaningful standards.”
However, the West Virginia The ruling may not bode well for the Biden administration in the Clean Water Act challenge slated for this fall, legal experts say. In this case, Sackett v EPA, conservative justices could also find that the EPA has exceeded its authority when regulating the nation’s wetlands and waterways, despite the lack of clear direction from Congress.
“The court sent a strong message to the EPA not to read its authority too broadly,” said Dan Farber, a law professor at the University of California, Berkeley. “And it will certainly be very useless in terms of Sackett.
The Clean Water Act case is a long-running dispute involving an Idaho couple, Chantell and Mike Sackett, who attempted to build a home on their land near Priest Lake. The couple said their plans were prevented by an order from the EPA, which determined the property contained a wetland and they needed a federal permit.
Supreme Court takes on EPA case that could restrict Clean Water Act
The case raises the question of what constitutes “United States waters,” which the Clean Water Act was passed to protect in 1972. The Sacketts favor a narrower definition proposed by the late Justice Antonin Scalia and defended by business groups such as the United States. Chamber of Commerce. If they prevail, by some estimates, 90% of federally regulated waterways in America would lose their protection.
“Over the past 30 to 40 years, the Clean Water Act has become much more than a grassroots water quality program,” said Damien Schiff, senior counsel at the Pacific Legal Foundation, which represents the Sacketts. . “In practice, it’s become something like a mini federal zoning code.”
Meanwhile, Republican attorneys general are pushing to stop Biden from increasing a key metric that represents the true costs of climate change. This metric, called the social cost of carbon, applies to consecutive decisions affecting the extraction of fossil fuels on public lands, infrastructure projects and even international climate negotiations.
In May, the Supreme Court allowed the Biden administration, for now, to continue to consider the societal costs of climate change as it drafts new regulations and strengthens existing ones. But there is still a chance that the lower courts could thwart his use as the legal battle progresses.
“The social cost of carbon litigation – and in particular the willingness of states to take this all the way to the Supreme Court – indicates that there are groups who are truly willing to make aggressive, often novel, legal arguments to challenge the Biden administration’s actions to address climate change,” said Kirti Datla, director of strategic legal advocacy for Earthjustice, an environmental law firm.
Conservative politicians have also taken issue with Biden’s efforts to cut emissions from cars and light trucks, a major source of greenhouse gases. Led by Texas Attorney General Ken Paxton (right), a Republican-led coalition of 15 states pursued the administration’s final rule to curb tailpipe emissions, which would prevent billions of tons of carbon dioxide from entering the atmosphere. The litigation is pending in the DC Circuit Court of Appeals, one of the most important federal courts for environmental policy.
While the courts could limit the federal government’s ability to reduce pollution from power plants, some states are moving forward with clean energy requirements even as other states set them aside.
About 4 in 10 Americans live in a state, city or territory that has committed to 100% clean electricity by 2050 or later, according to an analysis by the League of Conservation Voters, an advocacy organization band. And 24 governors have pledged to halve greenhouse gas emissions by 2030 and reach net zero emissions by 2050, according to the US Climate Alliance, a bipartisan coalition of governors committed to championing the goals. of the Paris climate agreement.
In Oregon, Governor Kate Brown (D) last year signed into law one of the most aggressive clean energy plans in the country. The plan calls for the state’s largest utilities to reduce greenhouse gas emissions by 80 percent by 2030, 90 percent by 2045, and 100 percent by 2040. This timeline is similar to the Biden’s goal to eliminate emissions from the country’s electricity sector by 2035.
Biden calls for 100% clean electricity by 2035. Here’s how far we need to go.
“Whatever the Supreme Court of the United States decides, we will continue to move forward as we see the impacts of climate change every day,” Brown said in an interview, citing the state’s vulnerability. to deadly wildfires, scorching heat waves and severe drought fueled by rising global temperatures.
In Connecticut, Gov. Ned Lamont (D) last month signed into law a goal to achieve a carbon-free electric grid by 2040. The move came after Connecticut’s last coal-fired power plant was shut down , ending a 53-year run, as it struggled to compete with cheaper natural gas and renewables.
“Investing in a clean, resilient power grid has long been a priority for Connecticut, as it has for many states, because of the enormous benefits – jobs and economic development that come with investing in clean energy, cleaner air and better health for our children and families, and better protection against the extreme weather and volatile price swings that come with reliance on fossil fuels,” Lamont said in a statement.
Under Governor Glenn Youngkin, a Republican, Virginia headed in the opposite direction. Youngkin announced plans to withdraw the state from the Regional Greenhouse Gas Initiative, an effort to reduce carbon emissions from the electricity sector in the Northeast and Mid-Atlantic , calling it a “bad deal” for consumers.
Republican lawmakers in Pennsylvania also tried to block Democratic Gov. Tom Wolf from joining the group. The issue will be decided in November, when voters elect a new Pennsylvania governor for the first time in eight years. GOP candidate Doug Mastriano warned that the program would decimate jobs in the energy sector.
Meanwhile, in Nebraska – a red state that Donald Trump won with 58.7% of the vote in the 2016 presidential election – the three utilities have all pledged to achieve net zero emissions by 2050. at the latest.
The decision was largely spurred by corporate demand for clean energy. Major companies such as Facebook have set up data centers in Nebraska, the nation’s third windiest state, hoping to meet their commitments to use 100% renewable energy.
“The market is moving toward clean energy regardless of what happens with the Supreme Court decision,” said Chelsea Johnson, deputy director of Nebraska Conservation Voters. “Federal regulation can help, but it’s not the end of the world, especially when the economy makes so much sense even without regulation.”
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