The recent Supreme Court ruling in West Virginia v. EPA is an appalling blow to our efforts to mitigate climate change. Change has always stemmed from activists, but we’re now carrying more of the weight to keep Congress and states focused on meaningful legislation.
With all the negativistic actions that corporate polluters have been taking to circumvent environmental regulations established by the EPA coupled with extreme partisanship in Congress, one may believe that things couldn’t possibly get harder. Lo and behold, they just have. The conservative Supreme Court has unilaterally impeded this critical body from carrying out duties in a manner that will help see climate solutions faster. Six out of nine people who have lifetime appointments with no input from the public stood on the wrong side of history, pushing us further back from real solutions.
A key area of attention in the case was the Clean Power Plan, an Obama era policy that was meant to establish rules governing fossil-fuel-fired electric generators, but the truly unprecedented development was the first time that a court majority ever explicitly invoked the Major Questions Doctrine (MQD). Chief Justice John Roberts summarized the justifications behind invoking the doctrine and what its fundamentals are in the official published text of the case. He states it has taken “hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” This was one of the most prominent fears that progressives had as the court increased in the number of its conservative justices, and what makes these new times so frightening is that these six have the capability of invoking this doctrine to perceived government overreach in any federal agency.
Justice Elena Kagan wrote for the dissenting party, affirming her belief that the court should respect the broad range of power allowed by past congresses for an agency such as the EPA to carry out its duties, and this is exactly what is necessary to continue our fight against climate change. By trusting the EPA and experts thereof, Congress and concerned citizens need not worry so much about the overwhelming scope or intricacies of this ubiquitous emergency. Undermining its authority to cover all facets, including the biological, legal, and economic branches, will only facilitate corporate profits from pollution at a more productive rate. Although it’s customary and a vital cog in representative government to not allow agencies to have too much power, we can’t ignore the need to rapidly transition away from fossil fuels as well as the health of those who are exposed to toxins. Black and brown communities are statistically more likely to suffer from more particle pollution than white populations (U.S. EPA, 2019, Section 12.5.4).
As for the specific constraints that have been fettered to the agency, it cannot, under the Clean Air Act, set emissions limits for existing power plants based on the sector’s ability to shift to renewable energy, something known as “generation shifting” (earthjustice.org). The EPA still retains the ability to regulate carbon dioxide and set emissions standards, but it no longer has the authority to require that these plants switch to greener energy via generation shifting. This may not seem like much when comparing to the broad range of duties that remained intact but pushing for companies to transition to cleaner methods would have been a valuable tool for addressing emissions at the main source. Thankfully, under Section 111(d) of the Clean Air Act, the EPA may regulate emissions for new power plants, regulate emissions from vehicles, and regulate methane emissions from oil and gas wells.
On the bright side of this development, states and smaller governments don’t have any limitations on how they decide to take action on climate change, so there wouldn’t be any problems if they implemented measures that the EPA is now unable to. In fact, 21 states have pledged to become 100% renewable, demonstrating the splendid power they have to redouble efforts to reach the IPCC’s goals. This is where we must come in to spur them and the federal government on. Every great challenge is accompanied by setbacks to overcoming it, but that doesn’t mean we should give up.
Congress still has the Build Back Better Act on the table notwithstanding the continued negotiations with Senators Manchin and Sinema, but it’s up to us to demand that our elected officials work to meet this moment. The EPA should also solidify a new suite of rules based on the remaining authority it has so that the agency can still be proactive in combating climate change. In the end, everyone needs to stand up and fight. Rally in the streets, call/email Congress, join an environmental organization, donate to different causes, and educate yourself on how climate affects all of us. Together, we will foster a better world for those suffering today and for posterity.