Oct 29, 2021
As U.S. President Joe Biden prepares for a consequential United Nations climate summit in Scotland, the Supreme Court on Friday provoked widespread alarm by agreeing to review the Environmental Protection Agency's authority to limit planet-heating pollution.
"The Supreme Court could destroy the planet. Pass it on," tweeted Rep. Earl Blumenauer (D-Ore.) in response to the decision.
"This is ominous."
Republican-led states and coal companies asked the justices to weigh in after the U.S. Court of Appeals for the District of Columbia Circuit in January struck down the Affordable Clean Energy (ACE) Rule issued under former President Donald Trump.
The day before Biden took office, a divided three-judge panel said that the Trump-era rule--intended to replace former President Barack Obama's Clean Power Plan, which never took effect--"hinged on a fundamental misconstruction" of a key section of the Clean Air Act that resulted from a "tortured series of misreadings" of the law.
The justices will now consider whether that section of the Clean Air Act "clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation's energy system."
Though there was some initial confusion about the forthcoming review due to a typo in Friday's order that was later corrected, climate action advocates and legal experts frantically issued warnings about how a ruling from the high court's right-wing supermajority may impede the Biden administration's efforts to combat the climate emergency.
\u201cThe Court Republicans have been handmaidens to fossil fuel, unleashing their money in Citizens United, and killing the Clean Power Plan at their behest. This is ominous.\nhttps://t.co/QProtMklxb\u201d— Sheldon Whitehouse (@Sheldon Whitehouse) 1635542922
"This is the equivalent of an earthquake around the country for those who care deeply about the climate issue," Harvard University law professor Richard J. Lazarus toldThe New York Times. The court's decision threatens "to sharply cut back, if not eliminate altogether, the new administration's ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation's power plant[s]."
The development comes a day after Biden announced a $1.75 trillion watered-down version of the Build Back Better Act that stripped out some climate provisions due to opposition from Sen. Joe Manchin (D-W.Va.), one of the corporate-backed, right-wing party members who has held up the package designed to include much of the president's agenda.
Although the Biden administration is still working on ways to cut emissions that don't rely on the section of the Clean Air Act in question, HuffPost's Alexander Kaufman explained how an unfavorable ruling from the Supreme Court could cause problems, given current conditions in Congress:
"It's only this one statute of the Clean Air Act, which is one of many tools the administration has," Michael Gerrard, director of Columbia Law School's Sabin Center on Climate Change Law, told HuffPost. "I don't think it's a problem for most of the measures the administration might want. But there's this one particular tool that might be in trouble."
The court could, however, seek to "take this as an opportunity to rule more broadly about the ability of Congress to delegate decisions to agencies," by going after the non-delegation doctrine, and might "say Congress is going to have to give EPA authority over such an important area and be more clear and explicit."
That would likely constitute a victory for the plaintiffs. With a 50-50 split in the Senate, Democrats need to vote in lockstep to pass a bill, giving unique power to lone senators like Manchin, whose opposition to climate regulations and personal family fortune tied up in a coal business have made him a magnet for fossil fuel industry donations throughout the past year. He'd be unlikely to vote for legislation granting the EPA new powers to regulate greenhouse gases. And Republicans are favored to win back at least one chamber of Congress in next year's midterm election.
This "is the most significant climate case to reach the Supreme Court since 2007, when the justices ruled in Massachusetts v. EPA that greenhouse gases could be regulated as air pollutants under the Clean Air Act," notedE&E News.
As the petitioners, including 19 states led by West Virginia, celebrated the court's announcement, campaigners such as David Doniger, senior strategic director at the Natural Resources Defense Council's Climate & Clean Energy program, vowed that "we will vigorously defend EPA's authority to curb power plants' huge contribution to the climate crisis."
EPA Administrator Michael Regan, meanwhile, signaled in a pair of tweets that the Biden administration will keep up its work to address climate-wrecking pollution.
\u201cAfter the Court of Appeals for the District of Columbia struck down the ACE Rule, EPA got to work and will continue to advance new standards to ensure that all Americans are protected from the power plant pollution that harms public health and our economy.\u201d— Michael Regan, U.S. EPA (@Michael Regan, U.S. EPA) 1635542784
The federal agency, Regan vowed, "will continue to advance new standards to ensure that all Americans are protected from the power plant pollution that harms public health and our economy."
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