Opinion | The Supreme Court Confronts Climate Change

With Congress doing little on climate change, President Biden must use his executive authority to regulate greenhouse gas emissions across the US economy.

The Supreme Court appears determined to thwart him.

In a case to be argued on Feb. 28, the court seems poised to restrict the Environmental Protection Agency’s legal authority to limit carbon pollution from power plants and, by doing so, frustrate the country’s efforts to slow the pace of climate change.

The justices went out of their way to take the case brought by coal companies and Republican-led states even though no federal rule in effect regulates greenhouse gas emissions from power plants, and no company or state is required to take any action to control those emissions . No power company petitioned the court for its review, and in fact, several of the nation’s biggest power companies opposed the justices’ adding the case to their docket.

The Biden administration argues that the court should wait until the EPA issues a rule, as it plans to do; otherwise, any decision would be an advisory opinion based on a hypothetical, which the court has repeatedly said the Constitution does not allow. But the State of West Virginia and its fellow petitioners, including 17 other states and coal and mining companies, argue that any agency rule to cut carbon from the electric power sector will have such enormous consequences that the court should act now to curtail the agency’s authority .

In a letter to the court, those states warned in alarmist language against empowering the agency “to reorganize American industry.” The plaintiffs want a sweeping ruling to neutralize the EPA’s power to set any meaningful emissions standards.

Just by accepting the case, the court has suggested where it is headed – which is toward curbing the EPA’.s flexibility. The court’s conservative majority has been deeply skeptical of federal regulatory authority unless Congress has been extremely explicit in its instructions on what agencies can do. But Congress cannot anticipate every possible situation and for good reasons often delegates broad authority to agencies, letting them make expert judgments in technical domains.

The Supreme Court has repeatedly held that the Clean Air Act authorizes the EPA to regulate greenhouse gas emissions, including those from power plants. Congress told the EPA to choose the best system to reduce emissions.

Yet the court might be so eager to restrict climate regulation under the Clean Air Act that it may be willing to overrule its own precedents, disregard foundational constitutional principles requiring plaintiffs to show concrete harm and ignore the business needs of the affected industry. In doing so, the court may inadvertently harm the power sector more than it helps it, by ruling out practical, inexpensive or flexible strategies that the industry and many states support to reduce emissions.

Burning fossil fuels to generate electricity is responsible for about 25 percent of the nation’s greenhouse gas emissions, behind only transportation. Substantial reductions in power plant emissions are critical if the United States is to meet its pledge in the Paris Agreement to cut greenhouse gas emissions economywide by 50 percent to 52 percent below 2005 levels by 2030. Biden has set a goal of eliminating those emissions from electricity generation by 2035.

He was not helped when Congress dropped a clean electricity program from the bipartisan infrastructure bill it adopted last year, which has left President Biden to rely primarily on the EPA to develop rules to achieve the nation’s climate goals under the Clean Air Act.

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The case is complicated but the question underlying it boils down to this: Is the EPA’s regulatory authority over power plant emissions narrowly limited to requiring only negligible improvements at each source, which would produce minimal if any emission reductions? That is what the coal companies and the states bringing this case want.

Or can the agency use a broader approach based on other things power plants can do to cut emissions, for example, by combining coal with other, less-polluting fuels like natural gas, biogas and hydrogen; integrating renewables; using technology that captures the emissions before they leave the smokestack; and by allowing companies to trade emissions credits or average emissions reductions across a company’s fleet? That is what the EPA and many power companies want. They also want the states to be free to consider such measures when deciding how best to achieve federal emissions limits.

The legal saga leading to this point goes back to the Obama administration, when the EPA adopted what was known as the Clean Power Plan. This rule required power plants to cut emissions 32 percent from their 2005 levels by 2030.

But the Supreme Court temporarily blocked it, and the Trump administration later repealed it, substituting a much weaker rule. Then, before Mr. Trump left office, the United States Court of Appeals for the District of Columbia Circuit rejected the Trump rule, saying its cramped view of what the EPA could do under the Clean Air Act was wrong. The court also ordered, and all parties agreed, that no power plant regulation would take effect until the EPA issued a new rule.

Normally, the case would have ended there. The Biden administration is now developing its own power plant standards with input from industry and others with a stake in the outcome.

The Supreme Court typically does not review a hypothetical or proposed regulation until it is final, and for good reason. Without the benefit of an agency’s thinking and a detailed administrative record of how it reached its decision, the court runs the risk that its abstract ruling will have unintended consequences, including harming the affected industry.

The court has a way out. It can dismiss the case because, with no rule in place, no one is suffering any legal harm – a requirement known as standing, which is necessary for the court to assert jurisdiction. That would preserve everyone’s right to litigate in the future while allowing the EPA to develop a new rule.

It is sensible to wait. Economic conditions and technology have evolved considerably in the past decade. The court should allow the EPA to conduct a fresh assessment of what power plants can reasonably do to cut carbon emissions using available technologies at an acceptable cost.

Many in the electricity industry support this approach. Ten power companies, with operations in virtually every state, sided with the Biden administration. The trade association representing all US investor-owned electric companies filed a brief urging the court to retain the EPA’s authority. These companies need stable, predictable federal rules to make economic decisions and plan investments.

The coal industry likes to argue that without the court’s intervention and direction, the EPA will run amok. But the record shows that if anything, the agency tends to underestimate what business can do to control pollution. The power sector exceeded the targets in the Clean Power Plan years ahead of time, even without a rule in place, showing that those standards were neither too costly nor transformative.

The justices should restrain themselves and let the regulatory process play out.

Jody Freeman is a professor at Harvard Law School, where she teaches environmental and administrative law. She was counselor for energy and climate change at the Obama White House in 2009 and 2010 and advised the Biden transition team. She is an independent director on the board of ConocoPhillips, a producer of oil and natural gas.

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