A Supreme Court ruling on Thursday significantly limited the Environmental Protection Agency’s authority to limit emissions from power plants under a 2014 rule, but the agency still retains other tools to curb emissions — for now.
In a 6-3 decision in West Virginia v. EPA , the court’s conservative majority found that the EPA lacked the authority to enforce an Obama-era power plant rule without specific approval from Congress.
While the ruling bars that specific approach without lawmakers signing off on it, the agency still has broader powers to regulate power plant capacity to reduce emissions under the Clean Air Act.
The problem, from the point of view of those who want the EPA to reduce emissions, is that in most cases they are less effective and more expensive in a political and regulatory environment where every second counts.
After the decision, the agency “still has a number of ways to do its job to protect public health and the environment, including by limiting greenhouse gas emissions from power plants,” Dena Adler, a researcher at New York University’s Institute for Policy Integrity, told The Hill in an email.
But she and other sources agreed that there are now important restrictions on the EPA that didn’t exist before.
Thursday’s decision specifically applies to the EPA’s 2015 Clean Power Plan, which was aimed at so-called generational shifting, or accelerating the transition from coal power to renewable energy and natural gas.
“This is a significant limitation because it was the EPA’s first choice for a reason,” said Jack Lienke, director of regulatory policy at the Institute for Policy Integrity. “It reflects how the electricity grid actually works and the fact that electricity is fungible.”
As a result of the ruling, the EPA has many of the same arrows in its quiver as before to deal with polluters from power plants, but “the tools that the EPA has are probably inadequate,” said Cardozo Law Professor Michael Herz.
One alternative to generation switching is co-firing, or burning two types of fuel at the same time, which can create a greener product in an existing plant.
“Depending on the level of co-firing you take, you can still get pretty significant emissions reductions with this approach,” Lienke said.
He cited 2021 modeling from Resources for the Future that showed the co-firing approach could be an effective means of reducing emissions, but “almost certainly not as cost-effective as intergenerational change,” he added.
Another possible approach is carbon capture and sequestration, whereby carbon emissions are stored and contained before they can enter the atmosphere.
However, the safest way to strengthen the EPA’s authority would be “legislation, appropriate, adequate, serious legislation,” Hertz told The Hill.
“And if I fail. The EPA will do what it has done so far, at least with Democratic presidents,” that is, it will try to enforce specific statutory provisions of the Clean Air Act that are “not necessarily perfectly suited” to reducing carbon emissions.
Adler was more optimistic, telling The Hill that “while some techniques still on the table may be less cost-effective than the Clean Power Plan, it’s worth remembering that the industry has repeatedly overestimated the costs for compliance with the Clean Air Act throughout history.”
In the meantime, she said, state and local governments can potentially pick up some of the slack through transportation policies, zoning and building codes.
Robert Glicksman, a professor of environmental law at George Washington University, warned that the decision could also foreclose some of the alternative options.
“It’s not saying it’s illegal, but I have my doubts because if the impact of one or another of these techniques, alone or in combination, could create a significant economic burden on regulated utilities, forcing some plants to close because they would If you fail to comply, regulators are likely to run afoul of the so-called Important Matters Doctrine, which requires special approval from Congress for regulations with major national implications. The doctrine was the basis of the majority opinion written by Chief Justice John Roberts.
The court’s ruling comes as the Biden administration tries to connect two seemingly conflicting goals: an ambitious goal to halve national greenhouse gas emissions by 2030 and increase fuel supplies as the U.S. and other nations face a major gas crisis.
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Many of the administration’s top legislative climate priorities fell by the wayside after Sen. Joe Manchin (DW.Va.) announced in December that he would not support the Build Back Better spending package. Senate Majority Leader Charles Schumer (DN.Y.) said Thursday that the decision illustrates the need for a climate deal in the Senate. Democratic leaders this week reportedly reached a deal on prescription drugs that would potentially clear the way for Schumer and Manchin to negotiate on the other major issues, tax reform and the climate.
Ultimately, Lienke said, the decision is a major setback for the Biden administration as it seeks to take major climate action amid what is likely to be a GOP gain in the midterm elections. However, he said, the ruling was not broad enough to put the agency’s more general regulatory powers at risk.
“The significance of the loss for EPA here, the loss of the ability to use generation switching, is a significant limitation … under the law, but EPA retains its authority to regulate greenhouse gases under the Clean Air Act.” There is no doubt about that, no one disputes it,” he said. “So the EPA will move forward with another rule, and there are still tools available to reduce emissions.”
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