OOne of our most pressing challenges as a country is to face the growing costs and potential dangers of climate changes. It’s a daunting task the Supreme Court just made harder.
In a ruling Thursday, the Court set new constraints on what the U.S. Environmental Protection Agency may do to cut the carbon pollution that’s driving the climate crisis. As a result, the agency has fewer options for curbing those emissions from the nation’s largest industrial source—power plants that burn coal and gas.
This is hardly the time to hamstring the nation’s environmental guardian in the environmental fight of our lives, but that’s what the Court’s conservative majority has done.
However, the decision does more harm than it.
After striking down a woman’s right to choose to have an abortion and making it harder to protect our communities from gun violence, the Court’s conservative majority has issued yet another ruling that reaches deep into the everyday lives of ordinary Americans in ways that will have profound and lasting impacts.
In this instance, West Virginia v. EPA, the Court erected a new barrier to limit the agency’s ability to cut carbon pollution from the nation’s power plants.
While the Court didn’t dispute the fact that the EPA is able to establish standards for power companies that requires them to place pollution controls at individual coal plants in order to reduce their emissions, they are not allowed to do so. But the Court’s decision did block the agency from writing rules that directly mandate a shift to cleaner forms of power, such as wind and solar.
The Clean Air Act gave Congress the explicit authority and duty to limit greenhouse gases and carbon pollution that cause the climate crisis.
To avoid a climate disaster, the science shows that we need to reduce our carbon emissions by half by 2030 and eliminate adding more to the atmosphere by 2050. It’s part of the EPA’s core mission to help make sure we get there.
Learn more What the Supreme Court’s Ruling on the ‘Clean Air Act’ Means for Carbon Emissions
The real-world problem is that power plants that burn coal and gas account for about a third of the nation’s carbon footprint. We’ve got to clean up these dirty plants to confront the widening climate crisis. It is essential that the EPA establishes effective standards. The agency should gather consumer groups, power company executives, frontline communities and other stakeholders immediately, propose rules by year’s end, and finalize them in early 2023. Climate change is fast approaching.
The impact of the Court’s decision is likely to extend far beyond environmental protections, raising potential challenges to the ability of all federal agencies, not just the EPA, to write the rules and standards we’ve depended on for more than a century to protect the public safety, health, and general welfare.
That’s because the Court drew on a legal theory called “major questions.” Under this doctrine, the Court held that the EPA cannot write a rule that would force a national transition away from the use of coal that would have economic and political significance too vast for agency rulemaking, without clear and explicit language from Congress.
But, as we and others argued in a brief we filed in support of EPA’s authority, Congress did provide the agency clear directions, in the Clean Air Act, giving “EPA tools to address climate-altering air pollution,” in the expectation that the agency would do just that.
That’s exactly how the process is designed to work.
The Constitution requires that Congress pass federal laws, and then the executive branch, via federal agencies, implements those laws. These agencies, not Congress, and not the Supreme Court, house and curate the expertise—legal, scientific, technical, and other—required to write the detailed rules and standards necessary to carry out the laws as Congress directs. Congress has the full power to address any agency that exceeds its boundaries.
Learn more The Biden Administration Responds to the SCOTUS Climate Setback
The “major questions” doctrine is a construct made up by interests that seek to cripple the government’s ability to protect the public from emerging and existing risks. Or, as Justice Elena Kagan put it in her dissenting opinion, “Prevent agencies from doing important work, even though that is what Congress directed.”
Kagan added that the “Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening.”
Thursday’s ruling throws up for grabs, not only EPA’s ability to protect the environment, but potentially many other standards and rules the public relies on to ensure access to safe homes and workplaces; keep dangerous food and harmful drugs off the counter; provide secure financial markets; protect our savings; and much more.
The Court’s majority isn’t protecting the separation of powers: it is arrogating power the Constitution expressly assigns to the legislative and executive branches. The result isn’t more clarity, but more of the kind of confusion that can invite endless legal challenges and paralyze the government’s ability to protect the public from emerging threats.
In modern times, good governance means protecting people from danger and injury. This case demonstrates the essence of what it means to be able to provide this service.
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