Supreme Court Leaves Open Powerful Climate Pathway for Biden, EPA

The Supreme Court's 6-3 decision last week curtailing the U.S. Environmental Protection Agency's ability to regulate power plant pollution left untouched one of the strongest tools to reduce greenhouse gas pollution under the Clean Air Act -- a nationwide greenhouse gas pollution cap.

"The Supreme Court ruling forecloses some action under one Clean Air Act program but leaves the door wide open for Biden to make big cuts to fossil fuel emissions and steer the country away from climate chaos," said Maya Golden-Krasner, deputy director of the Center's Climate Law Institute. "A nationwide climate pollution cap is the heart of the Clean Air Act, and it could achieve significant pollution reductions. We can't afford any more half-measures and delays."

In 2009 the Center and 350.org petitioned the EPA to use its full powers under the Clean Air Act to list greenhouse gas pollution as a criteria pollutant and set a nationwide emissions cap in the form of a "national ambient air quality standard," or NAAQS. Under the Act, EPA must set the science-based standard at the level that's necessary to protect human health and welfare and the environment.

Last year the EPA reopened consideration of the petition after it withdrew the Trump administration's denial of it, noting that "the agency did not fully and fairly assess the issues raised by the petition." The Center urged the EPA to move ahead with the cap because the urgency of the climate crisis and evidence that the dangers of global heating to human health and survival have only grown since the 2009 petition.

A standard for greenhouse gas pollution would have a huge impact because it would apply across all sectors of the economy, not just fossil fuel power plants. States would be given flexibility to choose how they cut pollution to meet the national cap.

The EPA has already set caps on other air pollutants, including carbon monoxide, lead and ozone. These standards have achieved enormous pollution reductions, leading to trillions of dollars in net economic benefits and saving thousands of lives each year.

In last week's Supreme Court ruling, the majority overturned the EPA's use of "outside the fence line" measures under the Clean Air Act, but contrasted EPA's application of that provision with setting a "cap that must be based on some scientific, objective criterion, such as the NAAQS."

Chief Justice John Roberts noted that "capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal may be a sensible solution to the crisis of the day" -- just not under one specific provision of the Act.

"The Clean Air Act's powerful provisions have protected the air we breathe for 50 years," said Golden-Krasner. "In the wake of the court's decision in West Virginia, we urge EPA to grant our petition to protect our health and environment from the climate emergency."

A nationwide greenhouse gas pollution cap under the Clean Air Act is a central component of the progressive Climate President action plan and model executive order, spearheaded by the Center and supported by hundreds of climate and environmental justice groups.

The Center and more than 1,200 groups in the People vs Fossil Fuels coalition have called on Biden to declare a national climate emergency and take swift executive action to reject new fossil fuel leases, infrastructure and exports. Under existing law, the president can also restrict international fossil fuel investment and rapidly manufacture and distribute renewable energy systems. All these powers remain intact after West Virginia v EPA.