The American Electric Power Company’s Mountaineer plant in New Haven, West Virginia, October, 2009 (CNS photo/Ayesha Rascoe, Reuters)

On June 30, the Supreme Court ruled in West Virginia v. EPA that the Environmental Protection Agency cannot compel states to regulate their emissions through “generation shifting”—that is, by creating a system-wide cap-and-trade market to transition from coal and natural gas toward renewable sources of energy. Generation shifting was a key building block of the Obama administration’s Clean Power Plan (CPP), but it prompted attorneys general in several fossil-fuel-producing states to sue in 2015. The CPP was never implemented—it was stayed by the Supreme Court and then scrapped by the Trump administration—and the Biden administration does not intend to implement it now, as its modest generation-shifting goals have already been met and exceeded by market forces. Yet the court took the case anyway, presuming that President Biden’s EPA would propose a new set of more-ambitious standards that would justify the plaintiff’s claim of injury.

The basis for generation shifting in the CPP was a catch-all provision in the 1970 Clean Air Act, Section 111, which authorizes the EPA to determine the “best system of emissions reduction,” factoring in reasonable constraints of cost and health, and then to set an emissions standard based on what can be achieved by that system. The EPA under President Obama understood that the clearest, most cost-effective way to reduce emissions was to do so systemically, rather than just mandating upgrades at individual fossil-fuel power plants. No technological upgrades can improve the efficiency of a coal-fired power plant enough to meet the EPA’s goals for curbing climate change. Reaching those goals would require states to reduce the share of energy generated by these plants, or to compensate for their emissions by using carbon capture and storage, installing new windmills and solar panels, or purchasing emission credits in a cap-and-trade program. Such “outside the fence” regulation did not sit well with the Supreme Court’s conservative justices.

There is no solution to the climate crisis that will not involve great political and economic change.

In the majority opinion, Chief Justice John Roberts declares that this is not a case about climate change, but about the “major questions doctrine,” a legal approach with virtually no basis in precedent before this Supreme Court term. The doctrine holds that, in “extraordinary cases,” there may be “reason to hesitate” before concluding that Congress intended to delegate certain powers to an agency; without an explicit mandate from Congress, Roberts argues, agencies should not be able to regulate matters of significant political and economic concern. The definition of an extraordinary case, though, can be stretched to suit the whims of the court. This provides what Justice Elena Kagan, in a searing dissent, refers to as a “get-out-of-text-free card” that can “magically appear” when the court wants to ignore statutory language that might frustrate its goal of deregulation. While this ruling is ostensibly narrow, referring specifically to only one section of the Clean Air Act and generation shifting, its rationale has much broader implications not only for the EPA, but also for every other federal regulatory agency.

There is no solution to the climate crisis that will not involve great political and economic change. Any regulation sufficient to the scale of the problem could therefore be construed as “extraordinary” within this legal framework. Indeed, only extraordinary measures can extricate the United States from its deadly fossil-fuel dependency. With the EPA unable to fulfill the full scope of its mandate, the burden falls to individual states and to Congress, where the current Democratic majority is at the mercy of a senator from the coal-producing state that brought this suit. The best way to overcome a court determined to stymie regulation is to expand the Congressional majority this fall in order to pass climate legislation—but that, too, will require an extraordinary effort.

Isabella Simon is the managing editor at Commonweal.

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Published in the July/August 2022 issue: View Contents
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