Climate action could be next Democratic priority the Supreme Court takes down

Climate regulation could be the next Democratic priority to fall to the Supreme Court. 

The court released two major decisions this week — on guns and abortion — and is expected to soon rule on a case that has major implications for what powers the Environmental Protection Agency (EPA) has to regulate climate change.

Experts say a court ruling in favor of those seeking to curb the EPA’s authority could stunt the agency’s ability to prevent climate change from worsening.

“The more tools the court takes away from the EPA, under the Clean Air Act to address greenhouse gas emissions, the harder it’s going to be for the United States to do an effective job of contributing to the world’s efforts to limit climate change,” said Robert Glicksman, an environmental law professor at George Washington University. 

The court in February heard arguments focusing on the scope of the EPA’s powers to enact climate regulations.

The case was brought by several states led by West Virginia, who are seeking to preemptively block the Biden administration from setting standards that are likely to result in a shift away from coal plants and towards those powered by cleaner energy sources. 

Two coal companies and North Dakota also filed separate petitions asking the high court to take up similar questions. 

West Virginia argued the EPA doesn’t have the authority to set standards that encompass an entire sector of the energy industry and, rather, is limited to only setting restrictions on individual power plants. 

While the distinction may sound technical, experts say it could have major implications for how much planet-warming carbon dioxide ends up in the atmosphere.

William Buzbee, a law professor at Georgetown University, the court limiting the EPA to regulations within a physical power plant would likely result in more tons of planet-warming carbon dioxide emitted overall. 

He said in an email that giving the EPA broad powers would enable it to use strategies like emissions trading and shifting toward cleaner energy sources that are already being used by the power companies that are most effective at cutting planet-warming emissions. 

“A broad interpretation of EPA power would set national standards based on the ‘best systems’ used by the most effective pollution-reducing power companies, requiring the same for all power plants,” he said.   

Max Sarinsky, a senior attorney at the Institute for Policy Integrity, however, said there are some power plant-specific regulations that can be effective at fighting climate change. 

“Source-specific regulations like heat rate improvements, co-firing, carbon capture or some combination of various approaches — they can be quite environmentally effective,” Sarinsky said. 

Still, others point out the Clean Air Act restricts the EPA’s abilities here, only allowing it to require systems that have been shown to already be feasible.

“It [has to] be based on technology that already exists and has been proven to work,” Glicksman said. 

“EPA can’t say ‘well let’s impose a really ambitious reduction requirement that nobody can currently meet, but will push people to develop new technologies’…it’s kind of based upon status quo technology,” he added. 

David Driesen, a law professor at Syracuse University, also said he worries that the court could try to explicitly block the closure of power plants. 

“If they put in broad rhetoric about not closing power plants and not restructuring industry, that could make it not impossible but very hard to use EPA regulation to address global climate disruption effectively,” Driesen said.  

The anticipated ruling follows other moves by the court this past week that infuriated Democrats. The court on Friday overturned the right to an abortion as previously enshrined in Roe v. Wade. On Thursday it struck down a New York state law that required people to demonstrate a special need before being issued a license to carry guns outside of their homes. 

Buzbee said that if the court does limit the EPA’s climate powers, it will exacerbate the tension that many Americans feel with the court. 

 “If the Supreme Court…takes away that power, that will be a major loss of climate progress and it also will be a major reason to further distrust the Supreme Court as a highly political Supreme Court that’s more about power and less about law,” he said.