NRG’s coal-fired W.A. Parish Generating Station in Fort Bend County, near Houston, is the second largest thermal (coal, gas or nuclear) power station in the United States. RM VM, CC BY-SA 4.0, via Wikipedia

The Supreme Court dramatically limited the Environmental Protection Agency’s ability to fight climate change in a 6-3 ruling on Thursday.

The court declared that the Clean Air Act does not give the EPA the authority cited by an Obama-era program to reduce greenhouse pollution from power plants by requiring states, in individual plans, to create rules for power producers to substitute natural gas, wind and other lower-carbon electricity sources for coal.

The ruling will have no immediate impact on active regulations, though it would prevent the Biden administration from reviving the Obama program or another using its industry-wide approach.

The Obama effort, called the Clean Power Plan, was stalled in the courts and then replaced by a weaker Trump administration plan for reducing power plants’ emissions. The Trump plan itself was also not in effect in 2021 when the conservative-dominated Supreme Court chose to rule on a lawsuit against the Clean Power Plan. By taking up that litigation by West Virginia and other parties, including the state of Texas, the court signaled that it would probably rule negatively on the program.

Alone among the states, Texas had refused even to begin planning to implement the Obama administration plan. Market forces have rapidly reduced climate-disrupting pollution from Texas power plants anyway, with the increased production of wind power and decline of coal-fired production in the state.

The court’s ruling did not go as far as some climate-action advocates had feared it might – it did not erase EPA authority to regulate climate-disrupting pollution, for instance. Instead, the six conservative justices who made up the majority blocked the industry-wide rules embodied in the Clean Power Plan and said regulation of greenhouse emissions from power plants had to be applied with case-by-case, plant-by-plant requirements of technological controls.

Nor did the court issue the sort of sweeping blow to independent agencies’ authority to set environmental, safety and health regulations that some opponents of climate action had hoped for. A years-long effort by anti-regulation parties that include industry and industry-funded groups and their political allies (including Republican state officials in Texas) has sought to limit agencies’ regulatory authority under what these opponents call “the administrative state.”

Assessing the ruling’s broader future ramifications for climate-related and other regulatory initiatives, Robert Weissman, president of the environmental advocacy group Public Citizen, noted that the decision in the case at hand, West Virginia v EPA, “defines a ‘major questions doctrine’ that has not previously been part of statutory interpretation, and which the court described as applying when an agency asserts ‘highly consequential power beyond what Congress could reasonably be understood to have granted.’

“While there are good reasons to fear that industry will try to use this doctrine to undermine agencies’ ability to adopt strong public health, safety, consumer, and environmental protections,” Weissman added, “the court specifies [in the West Virginia ruling] that it is only to be applied in ‘extraordinary cases.’”

What the court regards as “extraordinary” remains to be seen, of course.

Texas Attorney General Ken Paxton’s office hailed the ruling as “a significant victory for energy independence, efficiency, and economy.” The Austin-based Texas Public Policy Foundation, an influential, industry-funded think tank and staunch opponent of climate regulations, celebrated the ruling as a “precedent [that] creates a significant restraint on executive regulatory power in the future.”

However, Robert Henneke, the foundation’s executive director, issued a statement in which he seemed tacitly to acknowledge that the ruling was not as broad a regulation-limiting precedent as foes of the Clean Power Plan had hoped for: “While not a grand slam ruling, today’s two-run double by the Supreme Court makes it much more difficult for the Biden EPA, or any future administration, to order sweeping environmental changes without congressional approval.”

Below this story: Texas experts comment on the ruling

Chief Justice John Roberts, who wrote the ruling, said the Clean Power Plan’s ultimate goal of decarbonizing the electric power industry – the U.S. economy’s second biggest emitter of greenhouse pollution after the transportation sector – was beyond the scope of the EPA’s statutory authority:

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in the [Clean Air Act’s] Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In a fiercely worded rebuttal, Justice Elena Kagan wrote on behalf of the three dissenting justices that “Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan – in other words, to decide that generation shifting [from coal to cleaner fuels] is the ‘best system of emission reduction’ for power plants churning out carbon dioxide.”

She added: “Whatever else this court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening.”

The ruling adds to the Biden Administration’s challenges in crafting policies to meet the president’s goal (included in his pledge for U.S. action under the Paris Climate Agreement) to cut the nation’s greenhouse emissions in half by 2030. A major part of meeting that goal was to have been climate provisions in his Build Back Better bill, which has been stalled in Congress with no clear sign of revival.

The justices’ decision to limit the administration’s climate-action options comes as climate scientists have been intensifying their warnings about the weather extremes and health threats emanating from a changing climate.

A lead author of the latest summary of research findings by the world’s leading body of climate scientists said when it was released last August, for instance, that “unless there are immediate, rapid, and large-scale reductions of all greenhouse gases, limiting global warming to 1.5 [degrees] Celsius will be beyond reach.”

The earth’s climate has already warmed by 1.1 C above pre-industrial levels, and 1.5 C was a limit adopted by nearly 200 nations in the Paris agreement with the aim of avoiding the most damaging effects of climate disruption.

Bill Dawson is the editor and founder of Texas Climate News.

Texas experts comment on the ruling

Texas Climate News sought and received these comments by Texas experts about the significance and impacts of the Supreme Court’s ruling in the West Virginia case.

Victor B. Flatt is an expert on climate, environmental and energy law at the University of Houston Law Center, where he is Dwight Olds Chair in Law and faculty co-director of the Environment, Energy, and Natural Resources (EENR) Center.

The court’s decision is not surprising since they reached to take the case at all. But it was not extreme (from an environmental perspective) as it could have been.

The majority applies the “major questions” doctrine to conclude that a broad reading of Clean Air Act terms to address climate change – which was a relatively new interpretation – was of vast economic and political significance. This means the Environmental Protection Agency cannot address it unless legislation explicitly allows it to. The Court says here the Clean Air Act is not that explicit.

This does not eliminate the EPA’s power to regulate greenhouse gases and Massachusetts v EPA [the 2007 Supreme Court ruling that said the agency has the authority to regulate greenhouse gases] is still good law.

Overall, for regulation generally, [the ruling] is showing the court’s willingness not to defer to agencies under the Chevron doctrine because of an assumption of congressional intent, but that the intent to regulate broadly by an agency must be clearer.

This really has no effect on how the Texas grid is operating since economics have driven it to lower carbon emissions without being required by EPA regulations. However, the general limiting nature of the “major questions” doctrine and its particular application here to greenhouse gas regulation portends that the EPA will have less flexibility in greenhouse regulation of other sectors important in Texas such as refining.

Daniel Cohan is an atmospheric scientist, environmental engineering professor and climate policy expert at Rice University in Houston.

The Supreme Court overruled the novel approach that the [Obama administration’s] Clean Power Plan would have taken, but didn’t drastically curtail EPA’s authority in other ways. This still gives the EPA the ability to regulate emissions from facilities source by source, and leaves Massachusetts v EPA intact. What’s needed next is for the EPA to issue rules that strengthen the emissions limits for power plants and other sources.

I think some of the statements about this ruling are overblown, and I don’t foresee it having a big effect on emissions. EPA had already abandoned the Clean Power Plan. This ruling retains EPA’s ability to enact more traditional power plant regulations, and doesn’t touch the authority that Massachusetts v EPA gave the agency to regulate greenhouse gases from other sectors.

Power plant emissions have declined faster than the Clean Power Plan sought, mainly because wind and solar are outcompeting coal. It’s important to accelerate that progress, which EPA can still do by enacting tougher emissions standards in more traditional ways, and Congress can do by incentivizing clean energy and transmission infrastructure.

Jim Marston is an Austin-based environmental attorney and consultant on clean energy issues. Until retiring in 2020, he was vice-president and regional director of the Environmental Defense Fund’s Texas office, where he was a leader in efforts by Texas environmentalists, cities and others to block construction of new coal power plants.

Today, the activist Supreme Court overruled decades of precedent, this time related to regulating air pollution. What this decision means for Texas is more deadly pollution from coal power plants will be emitted and make its way into the lungs of Texas children. While other states have environmental agencies that set their own state standards, the Texas agencies are notoriously under the control by the polluters they are supposed to regulate.

The Texas agencies tend to do only the minimum that is required by federal law. Thus, the weakening of U.S. EPA’s standards means that Texas health standards will also be weakened. The Texas Commission on Environmental Quality now has an obligation to impose new state pollution limits on coal power plants in the state. Unfortunately, based on their lackluster performance in recent years, I fear TCEQ will again fail the people of Texas and do nothing.

Finally, the decision is also very bad news for the efforts to slow global warming. Texas is the worst carbon polluter among the states and, along with much of the country, is suffering record high temperatures. This awful decision will increase carbon pollution and lead to more and faster warming of the climate. The impact on Texas and the planet could be catastrophic.