What the Supreme Court ruled the EPA can and can’t do

A Thursday ruling by the Supreme Court significantly curtailed the Environmental Protection Agency’s power to restrict emissions from power plants under a 2015 rule, but the agency still retains other tools to curb emissions — for now. 

In the 6-3 ruling in West Virginia vs. EPA, the court’s conservative majority found that the EPA lacked the authority to enforce an Obama-era power plant rule without specific congressional approval.  

Although the ruling disallows that specific approach without lawmakers signing off, the agency still has its broader authority to regulate power plant outputs to cut emissions under the Clean Air Act.

The problem, from the point of view of those who want the EPA to cut emissions, is that in most cases they are less efficient and more expensive in a political and regulatory environment where every second counts. 

Following the ruling, the agency “still has a number of pathways to do its job to protect public health and the environment, including by limiting greenhouse gas emissions from power plants,” Dena Adler, a research scholar at New York University’s Institute for Policy Integrity, told The Hill in an email. 

But she and other sources agreed there are important limitations now for the EPA that weren’t there before.

Thursday’s ruling specifically applies to the EPA’s 2015 Clean Power Plan, which had a goal of so-called generation-shifting, or accelerating the shift from coal-fired power to renewable energy and natural gas.

“That’s a significant constraint, because it was the EPA’s first choice for a reason,” said Jack Lienke, regulatory policy director at the Institute for Policy Integrity. “It reflects how the power grid actually operates and the fact that electricity is fungible.” 

In the wake of the ruling, the EPA has many of the same arrows in its quiver as before to address pollutants from power plants, but “the tools the EPA has are probably inadequate,” said Cardozo School of Law professor Michael Herz. 

One alternative to generation-shifting is co-firing, or the combustion of two kinds of fuel at the same time, which can create a more environmentally friendly product at an existing plant.  

“Depending on the level of co-firing that you assume, you could still get quite significant emissions reductions through that approach,” Lienke said.

He cited 2021 modeling by Resources for the Future, which indicates the co-firing approach could be an effective means of emissions reduction, but “almost certainly not as cost-effective as generation shift,” he added. 

Another possible approach is carbon capture and sequestration, through which carbon emissions are stored and contained before they can enter the atmosphere. 

However, the safest way to shore up EPA authority would be “legislation, appropriate, adequate, serious legislation,” Herz told The Hill.

“And failing that. EPA is going to do what it’s been doing, at least with Democratic presidents,” that is, attempt to implement the specific statutory provisions of the Clean Air Act, which “are not necessarily ideally suited” to lowering carbon emissions.

Adler was more sanguine, telling The Hill that “while certain techniques still on the table may be less economically efficient than the Clean Power Plan, it is worth remembering that industry has repeatedly overestimated the costs of Clean Air Act compliance throughout history.”

In the meantime, she said, state and local governments can potentially pick up some of the slack through transportation, zoning and building code policies. 

Robert Glicksman, a professor of environmental law at George Washington University, warned that the ruling might foreclose on some of the alternate possibilities as well. 

“It doesn’t say that’s unlawful, but I have my doubts, because if the impact of one or another of those techniques, alone or in combination, could pose significant economic burdens on regulated utilities, forcing some plants to close down because they couldn’t afford to comply,” regulators are likely to run up against the so-called major-questions doctrine, which requires specific congressional approval for regulations with major national implications. The doctrine was the foundation of the majority opinion, written by Chief Justice John Roberts.  

The court’s ruling comes as the Biden administration seeks to bridge two seemingly contradictory goals: an ambitious target of cutting national greenhouse gas emissions in half by 2030, and increasing the supply of fuel as the U.S. and other nations face a major gas crisis. 

Many of the administration’s loftiest legislative climate priorities fell by the wayside after Sen. Joe Manchin (D-W.Va.) announced in December he would not back the Build Back Better spending package. Senate Majority Leader Charles Schumer (D-N.Y.) said Thursday that the ruling illustrated the need for a deal on climate in the Senate. Democratic leaders this week reportedly reached a deal on prescription drugs, which would potentially clear the way for Schumer and Manchin to negotiate on its other major planks, tax reform and climate.

Ultimately, Lienke said, the ruling is a major setback for the Biden administration as it seeks to take major climate action against the backdrop of what are likely to be GOP gains in the midterm elections. However, he said, the ruling is not broad enough to put the agency’s more general regulatory authority at risk. 

“The significance of the loss for EPA here, losing the ability to use generation-shifting, is a significant constraint … under the law, but EPA does retain its authority to regulate greenhouse gases under the Clean Air Act. That is not in doubt, no one disputed that,” he said.  “So EPA will move forward with another rule, and there are still tools available to get emission reductions.” 

–Updated on July 5 at 9:47 a.m.