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All Eyes on SCOTUS: Supreme Court to Issue Climate Endangerment Finding Ruling – To Decide if EPA has authority to regulate CO2 or Congress


On the very last day of court opinions being issued in their current session, the U.S. Supreme Court is expected to issue a new climate change related ruling, bringing an end to a string of high-profile cases announced in recent days. The case before the U.S. Supreme Court is West Virginia vs. Environmental Protection Agency (EPA). The case was last heard by the Court in February and it is expected to be among the last rulings announced on Wednesday morning as the court wraps up work prior to summer recess.

The primary plaintiff of the case is West Virginia Attorney General Patrick Morrisey; he is joined by attorney generals from Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming. Morrissey’s office is also representing the interests of two coal companies in the case.

The EPA, backed by the administration of President Joe Biden, is being represented by the U.S. Solicitor General.

Ultimately, the plaintiffs are arguing that the EPA doesn’t have the authority to regulate power plant emissions and that Congress should be granted that authority. The plaintiffs argue that decisions around emissions should be at the hands of elected officials and not the EPA.

The EPA responds to the argument by saying that the Court should not read into the text an artificial restriction because any qualification would be directed at the states, not the federal agency.

What the court decides will have huge implications for the scope of federal administrative power and climate change policy.

The U.S. Supreme Court is made up of these 9 justices: from left to right: Justice Samuel A. Alito, Justice Brett Kavanaugh, Justice Clarence Thomas, Justice Elena Kagan, Justice John Roberts, Justice Neil Gorsuch, Justice Stephen Breyer, Justice Amy Coney, Justice Sonia Sotomayor. Image: SCOTUS/Pool Photography
The U.S. Supreme Court is made up of these 9 justices: from left to right: Justice Samuel A. Alito, Justice Brett Kavanaugh, Justice Clarence Thomas, Justice Elena Kagan, Justice John Roberts, Justice Neil Gorsuch, Justice Stephen Breyer, Justice Amy Coney, Justice Sonia Sotomayor. Image: SCOTUS/Press Pool Photography

The Clean Air Act of 1963 was the first federal legislation regarding air pollution control. It established a federal program within the U.S. Public Health Service and authorized research into techniques for monitoring and controlling air pollution. Four years later, in 1967, the Air Quality Act was enacted to expand federal government activities. Specifically, the 1967 updated permitted the government to pursue enforcement proceedings as it related to interstate air pollution transport. As part of the process, the federal government for the first time conducted significant, widespread ambient monitoring studies and stationary source inspections to understand the release and movement of pollutants into the air.

However, the move to further regulate clean air was pushed by Republican President Richard Nixon. On December 31, 1970, Nixon signed the Clean Air Act, a landmark piece of legislation that led to significant public health and environmental benefits around the country.

“I think that 1970 will be known as the year of the beginning, in which we really began to move on the problems of clean air and clean water and open spaces for the future generations of America,” said President Nixon at the signing.

President Nixon established the Environmental Protection Agency in 1970, with a focus on clean air and eventually clean water. In his 1970 State of the Union Address, President Nixon said, “The great question of the seventies is, shall we surrender to our surroundings, or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land, and to our water?”

Since becoming law, the Clean Air Act has seen significant amendments added over time, with 1977 and 1990 increasing the authority and responsibility of the federal government.

After the Clean Air Act’s first 20 years, in 1990, according to the EPA, it prevented more than 200,000 premature deaths and almost 700,000 cases of chronic bronchitis were avoided. From 1990 to 2010, total emissions of the six principal air pollutants decreased by more than 41 percent, while the Gross Domestic Product increased by more than 64 percent.

In recent years, some have wanted to expand the scope of the Clean Air Act to tackle climate change. While the science remains inconclusive, many scientists believe there is a link between air pollution and an evolving global climate, with some expressing the theory that carbon dioxide, the primary byproduct of gas and diesel engines and fossil-fueled power plants, is impacting global temperatures around Earth.

In the 1970 law, the EPA was required to issue new “standards of performance” for every newly constructed “stationary sources” of pollution, which include power plants. All regulations of power plants must undergo this process and the federal government partners with state governments to ensure EPA standards are met through coordinated enforcement measures.

In 2015, President Barack Obama’s administration set the Clean Power Plan within the Clean Air Act. The Clean Power Plan (CPP) set the first-ever limits on carbon pollution from U.S. power plants. The intent of President Obama’s plan was to rein-in power plant pollution and speed transition away from fossil fuels, citing climate change as the primary reason for the the updated rule.

In 2019, President Donald Trump’s administration killed the Clean Power Plan.  Then-EPA Administrator Andrew Wheeler criticized the Obama policy, saying, “The CPP would have asked low- and middle-income Americans to bear the costs of the previous administration’s climate plan.” Wheeler added,  “One analysis predicted double-digit electricity price increases in 40 states under the CPP.”

In a 2007 Supreme Court case, the Justices ruled 5-4 in Massachusetts vs. EPA that the agency has to limit greenhouse gases under the Clean Air Act if they’re a threat to public health. In a 2009  endangerment finding, the EPA determined carbon dioxide was indeed a threat to public health.  Based on that Supreme Court ruling, the Trump administration couldn’t simply kill the CPP; it needed to have a plausible replacement to it.

With the CPP repealed, the Affordable Clean Energy (ACE) rule was put in its place.  The ACE rule establishes emission guidelines for states to use when developing plans to limit carbon dioxide at their coal-fired electric generating units.

The ACE rule was short lived, however. On January 19, 2021, the D.C. Circuit Court vacated the Affordable Clean Energy rule and remanded to the EPA for further proceedings consistent with its opinion.

At this time, President Biden and the EPA hasn’t revived President Obama’s Clean Power Plan, saying they want to formulate their own regulations for power plants.

Before a new rule could be created though, West Virginia and other Plaintiffs brought the matter before the Supreme Court.

On Wednesday, the Supreme Court could agree with West Virginia, putting climate change policy out of the EPA’s hands and into that of Congress and/or individual states to do what they feel is best for their voters interests.  Such a decision would kill President Biden’s ambitious plans to make the U.S. power sector completely free of carbon pollution by 2035. With Congress unable to move along any bipartisan policy dealing with air pollution, any decision by the Supreme Court to restrict the President’s administration and EPA from regulating greenhouses would lead to action for now.

The Supreme Court could decide to look narrowly at the Clean Air Act’s language about the EPA’s authority of power plants. In this case, it may provide an avenue for the EPA to regulate greenhouse gas pollution through something other than the Clean Air Act.

Either way, the Supreme Court’s ruling will be watched carefully by everyone tracking the future of carbon dioxide emissions in America.


Related Links: 

Flashback 2007: Inhofe Spokesman Morano: ‘CO2 is not an air pollutant and should not be treated as one’…

The Vindication of EPA’s Alan Carlin: ‘In 2009, when EPA announced its ‘endangerment’ finding…Carlin, a 35-year veteran EPA employee…produced a 98-page critique’

Watch: Climatologist explains why EPA Endangerment Finding on CO2 should be vacated

The Scientific Case for Vacating the EPA’s Carbon Dioxide Endangerment Finding

CEI Report: EPA Using Flawed Models as Basis for Regulating Carbon Dioxide – EPA should withdraw from 2009 Endangerment FindingMorano: “Who can blame a judge? for blocking oil and gas drilling due to ‘climate’ – ‘Trump admin. has not challenged CO2 endangerment finding’ – Bush admin ‘rubber-stamped UN’ reports