West Virginia vs. EPA: The Supreme Court’s ruling on the EPA’s legal and illegal actions.
The Environmental Protection Agency (EPA) still has access to other tools to reduce emissions, despite a ruling that was handed down on Thursday by the Supreme Court that significantly limited the agency’s ability to restrict emissions from power plants in accordance with a rule that was issued in 2014.
The conservative majority of the court concluded in the finding that West Virginia vs. EPA that the EPA did not have the jurisdiction to implement a power plant rule that was enacted during the Obama administration without special consent from Congress. The vote was 6-3. Despite the fact that the judgement makes it impossible for Congress to provide their approval for that particular strategy, the EPA retains its broader jurisdiction under the Clean Air Act to regulate the outputs of power plants in order to reduce emissions.
In a political and regulatory climate where every second counts, the difficulty, from the point of view of those who want the EPA to decrease emissions, is that in most cases, they are less efficient and more expensive. This is especially true in an atmosphere where every second counts.
Dena Adler, a research scholar at New York University’s Institute for Policy Integrity, said in an email to The Hill that despite 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 was responding to a question posed by The Hill.
However, she and other sources came to the conclusion that significant constraints had been placed on the EPA that weren’t there previously. The decision that was handed down on Thursday especially pertains to the Clean Electricity Plan that was issued by the EPA in 2015. That plan had the objective of “generation-shifting,” which means speeding the transition away from coal-fired power and toward renewable energy and natural gas.
According to Jack Lienke, director of regulatory policy at the Institute for Policy Integrity, “that’s a substantial restraint, since it was the EPA’s first pick for a reason.” “That’s a significant constraint” “It depicts how the power system truly functions as well as the reality that electricity may be transferred between different locations,”
“the tools the EPA has are probably inadequate,” said Cardozo School of Law professor Michael Herz after the ruling was handed down. The Environmental Protection Agency (EPA) still has many of the same options available to it as it did before the ruling in order to address pollution from power plants. Co-firing, also known as the simultaneous burning of two different types of fuel, is an alternative to generation shifting that can result in the production of a product that is friendlier to the environment at a facility that is already in operation.
According to Lienke, “Depending on the degree of co-firing that you anticipate, you may still obtain rather large reductions in emissions with that strategy.” He referenced 2021 modeling done by Resources for the Future, which suggests that the co-firing strategy may be an efficient means of reducing emissions, but he noted that it “almost definitely would not be as cost-effective as generation shift.” He mentioned this evidence.
Another strategy that might be used is called carbon capture and sequestration, and it involves preventing emissions of carbon from escaping into the atmosphere by storing and containing them beforehand. However, according to Herz’s comments in The Hill article, “legislation, suitable, substantial, and serious legislation” would be the most reliable approach to strengthen the EPA’s jurisdiction. “And if that doesn’t work.
The Environmental Protection Agency (EPA) is going to continue doing what it has been doing, at least with Democratic presidents, which is to attempt to implement the specific statutory provisions of the Clean Air Act, which “are not necessarily ideally suited” to reducing carbon emissions. This will continue as long as Democrats hold the White House.
Adler was more optimistic about the situation, 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 the history of the United States.” She stated that in the interim, local and state governments have the opportunity to pick up some of the slack through the implementation of regulations regarding transportation, zoning, and construction codes.
Robert Glicksman, an environmental law professor at George Washington University, feared the judgment would exclude certain possibilities. “It doesn’t say that’s illegal, but I have my doubts, because if one or more of those techniques, alone or in combination, could pose significant economic burdens on regulated utilities, forcing some plants to close because they couldn’t afford to comply,” regulators may run into the so-called major-questions doctrine, which requires specific congressional approval for regulations with major national implications. The majority opinion, written by Chief Justice John Roberts, was based on this notion.
The decision of the court comes at a time when the administration of President Biden is working to achieve two objectives that appear to be in direct opposition to one another. These objectives are: (1) an aggressive goal of reducing national greenhouse gas emissions by half by the year 2030; and (2) an increase in the supply of fuel at a time when the United States and other countries are facing a major gas crisis.
As a result of Senator Joe Manchin’s (Democrat of West Virginia) announcement in December that he would not support the Build Back Better spending package, many of the administration’s loftiest legislative climate initiatives have fallen by the wayside. On Thursday, Senate Majority Leader Charles Schumer (D-New York) stated that the verdict demonstrated the necessity for the Senate to reach an agreement on climate change. It was claimed this week that Democratic leaders had struck an agreement on prescription medicines, which might pave the door for Schumer and Manchin to engage on the party’s two big tenets, tax reform and climate change.
In the end, according to Lienke, the decision represents a big setback for the Biden administration as it strives to take major climate action in the context of what are sure to be wins for the GOP in the midterm elections. However, he emphasized that the finding does not have a scope that is extensive enough to threaten the agency’s overall regulatory power.
“The magnitude of the loss for EPA here, losing the power to employ generation-shifting, is a severe restraint… under the law; but, EPA does maintain its authority to control greenhouse emissions under the Clean Air Act. ” That is undeniably true, and I was surprised to hear anyone question it,” he stated. As a result, the Environmental Protection Agency (EPA) will move forward with another regulation, and there are still measures available to accomplish pollution reductions.
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