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💬 "How Bad is the Supreme Court’s Decision on Climate?"

The Carbon Copy

Photo by Claire Anderson / Unsplash

Table of Contents

Host: Stephen Lacey
Guest: Niina Farah | Climate Law & Policy Reporter | E&E News
Category: 💬 Opinion | SCOTUS & Climate

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Podcast’s Essential Bites:

[2:59] SL: “The Supreme Court has restricted how America's environmental cop can enforce climate pollution rules. […] On Thursday (June 30, 2022) morning, the conservative majority of the Supreme Court ruled the Environmental Protection Agency (EPA) overstepped its authority in regulating heat trapping gases from power plants.

[3:53] SL: “It's an odd case involving an interpretation of a 1970s law that set the foundation for a climate regulation that doesn't even exist today. In 2015, the EPA under President Obama unveiled the Clean Power Plan. It was a big deal. It was the first time that carbon emission standards were set for power plants. And the agency said it had the authority to do it under the Clean Air Act, a law enacted in 1970 to clean up air pollution. But a group of attorneys general led by West Virginia disagreed. They sued in federal court. And then Trump came into office. His EPA ditched the plan and created a toothless replacement that killed West Virginia's lawsuit. But then a bunch of states, cities and environmental and public health groups sued the Trump EPA. And last year a circuit court ruled the Trump administration's intentional slow walk was arbitrary and capricious.

[5:09] SL: “So there's a brief celebration, environmental groups put out press releases praising the decision. Still, there's no regulation in place anymore. Then a group of fossil fuel dependent states led by West Virginia, these are the states that sued the Obama administration all the way back in 2015, […] are not happy with this ruling. And they go try to get the high court's attention. And this begins the new chapter for West Virginia versus EPA. The chapter that just closed.

[6:25] NF: “Chief Justice John Roberts wrote the majority opinion for this case. And his argument was actually that, even though EPA had said that the Clean Power Plan was off the books, it didn't intend to go back to it, it wanted to start fresh. He argued that this rule was actually still in place. And so that there could be potential harm to states by continuing to have this rule. So he took the position and the majority took the position that they […] could take some action to block any sort of re-application of the Clean Power Plan.”

[7:08] NF: “What the Supreme Court said was that EPA had acted outside its authority under the Clean Air Act to use generation shifting, which is shifting from fossil fuel based energy sources to renewable energy sources as the foundation of its regulatory approach. And it said, it used what's known as the major questions doctrine as the basis for that. […] It's this legal theory that agencies while they generally get discretion from courts in how they interpret their authority under laws, in the case where you have a regulation that's really politically or economically significant, Congress needs to speak clearly to want to delegate that power to agencies. So in this case, EPA didn't have a clear mandate under the Clean Air Act from Congress to use generation shifting specifically to create a regulation.”

[11:35] NF: “I think the challenge that this ruling presents is one of timing. So if generation shifting as a basis for rule is off the table, it might make it harder for EPA and the US more broadly, to cut emissions at the pace that the Biden administration is looking to do. The target for 2030 is to slash emissions in half, based off of 2005 levels.”

[13:46] NF: “I would say [that when it comes to climate policy this decision is] bad to pretty bad. I think mainly because it's definitely not the worst for EPA, because it has that flexibility still to look at other solutions. […] It seems more narrowly focused to EPA. So you know, one of the major concerns here was that this was going to undermine agency authority more broadly. […] That, I think, has relieved at least some anxiety from some people that this is going to be sort of this sweeping change in agency power.”

[15:27] NF: “One really big concern coming into this case was that the Supreme Court was going to go after Massachusetts versus EPA, which gives EPA that power to regulate greenhouse gasses. It wasn't mentioned in this case. But there is concern that that might become a target, or […] that a future case may build off of what the court decided […] and further restrict agencies’ power here.”

Rating: ☁️☁️☁️

🎙️ Full Episode: Apple | Spotify | Google
🕰️ 17 min | 🗓️ 07/01/2022
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