US Supreme Court and the Environment

I was wondering about the long term implications of some of the recent U.S. Supreme Court decisions regarding environmental protections. Specifically, I was wondering if the article is reasonable and truthful, and the rationale of the Court.

Short excerpts…

“Today’s major environmental ruling from the Supreme Court, West Virginia v. EPA, is probably most notable for what it did not do.

It did not say that the Environmental Protection Agency is prohibited from regulating heat-trapping carbon pollution from America’s existing power plants.

It also did not strip the EPA of its ability to regulate climate pollution at all.

In short, it did not, as some progressives feared, blast away any possibility of using the federal government’s environmental powers to solve climate change, the biggest environmental problem of our time.

Yet its effects will be felt for years to come. The ruling limits the EPA’s ability to regulate climate change, but leaves enough room that the agency still must try to do so.”


This [Obama era proposal repealed by Trump, never enacted], the Clean Power Plan, would have mandated that power utilities reduce their carbon pollution over time and created a de facto cap-and-trade market for carbon pollution. The proposal then nudged that statewide power system to generate less electricity from coal plants and more from renewables… today, the Court ruled that the EPA cannot do that, but must regulate carbon emissions from power plants individually [as opposed to the electricity system as a whole]… [What the Court is doing today is stripping them of that interpretive flexibility that allows them to be economically efficient.]

“In 2007, the Supreme Court ruled that the EPA could regulate carbon pollution and other greenhouse gases… This state of unofficial nonregulation has protected fossil-fuel companies, which have yet to bear significant regulatory burdens…


The ruling’s effects may be more seriously felt outside of climate policy. In his decision, Chief Justice Roberts cited the “major questions doctrine,” a conservative legal idea that says federal agencies cannot issue regulations about questions of “vast economic and political significance” if Congress has not told them to do so. That doctrine carves out an exception to another idea, which legal experts call “Chevron deference,” that allowed agencies some freedom to interpret the laws governing them when Congress had not spoken clearly on a topic…

The major-questions doctrine could theoretically prevent the Biden administration from issuing new rules on other major topics, such as student loans or immigration.”

One question that came to mind, and was answered immediately, was:

Meyer: Can the EPA, at least under this ruling, issue a very blunt regulation? Can it say something like, Power plants can now only emit X amount of carbon per year, period—that’s it, have fun meeting that standard?

Wara: They can’t completely do that for old plants. They can do that for new power plants if there is existing technology available. And there, I think the problem that the states that oppose climate action are going to have is that many of them are also vociferously pushing development of CCS [carbon capture and storage], and pushing their utilities to try it. Those are bad facts for a case saying the technology is not available. And lots of industry is also pushing that.

I’m curious why that’s the case. Just mandate that plants must meet a X kg CO2/kWh standard, and if coal plants can’t meet it, so much the worse.

There is a small optimist in me that thinks this might ultimately be a boon–if the EPA is forced to use blunter instruments, then we will get harsher standards. Carbon markets allow a smoother transition, by trading credits from more-efficient to less-efficient plants, but if they’re forced to deal with plants individually, it becomes much more binary. The faster we can shut off all coal generation, the better.

CCS is a joke, but it’s good in that it gives the EPA plausible deniability. They can say they aren’t just making coal plants illegal; they can just use CCS if it’s so great. Of course it doesn’t really work and is super expensive, and probably the power companies know this, so they’ll be motivated to build out solar and wind.

Then again, just about everyone involved here is an imbecile, so maybe not.

Companies only have to claim that CC&S is workable in theory; whether it works in reality is a problem for somebody else down the line.


I know this was a parody of something else entirely (or perhaps not?), and yet it seems strangely relevant:

Some experts claim the ball might return to Earth someday, but their concerns were dismissed as “depressing”.

It is disingenuous to say or think “this only applies to the case before us” if one knows very well the issues apply widely and with far-reaching consequences.

Are we going to pretend these decisions were based on law and not a rogue supreme court that will undo all of the court’s post WWII rulings that have increased individual rights and the common good in order to allow corporations to operate unfettered by regulation, taxes, or any responsibilities at all in the end, along with establishing a state religion despite some little law somewhere prohibiting that? These decisions were made years ago, there was no consideration of the law, justice, the Constitution, or any thing else they swore they would consider in their rulings. This ruling simply says that the EPA, and all other government agencies do not have the authority to create regulations that businesses do not like.

Another view.

A short excerpt:

“Reducing carbon dioxide emissions and forcing “a nationwide transition away from the use of coal to generate electricity”, he wrote, “may be a sensible ‘solution to the crisis of the day”, but “it is not plausible that Congress gave [the EPA] the authority to adopt on its own such a regulatory scheme”.

The Clean Air Act may empower [the EPA] to regulate greenhouse-gas emissions, Chief Justice Roberts wrote, but “separation of powers principles and a practical understanding of legislative intent” require “clear congressional authorisation” before systemic regulations affecting the entire power network can be drawn up. The decision did not write off all future alternatives for what the Clean Air Act stipulates as a “best system of emission reduction”. It emphasised that the question in this case is narrower than that: whether the specific rules in Mr Obama’s plan were permissible under the statute. So the ruling may leave President Joe Biden with some latitude to devise new regulations.

Under the court’s ruling, when [the EPA] develops national emissions guidelines for existing power plants it must rely only on technological solutions that can be applied by existing plants, without assuming a fundamental change in their nature. In other words, guidelines must be drafted that allow a coal-fired power plant to remain a coal-fired power plant. In fact, power companies may find that replacing coal with renewables is more economical…”

Ontario did get rid of its coal burning plants. Although this increased the price of electricity, it seems to me that it was probably the best thing that government did. The provincial government acted with local utility companies and other organizations. No one “acted on their own”, to my knowledge.

In what sense is the EPA “acting on its own” if it works with an elected government to make meaningful changes which have the potential (at best) to benefit both the economy and the environment? I am a man of limited understanding, and regret I am not smart enough to understand the logic used by the learned Justices, nor the implications.

Predictably, The Grauniad had unkind words.