The EPA appears to be single-handedly deciding how a coal-fired power plant works, attorney Jacob Roth said Monday in a US Supreme Court hearing over the EPA’s right to curb greenhouse gas emissions. According to Roth, the EPA is trying to determine “how we generate electricity here in the United States.”
Of the hearingOn the very day the United Nations climate panel warned that the effects of climate change may be worse than they thought, judges are trying to clarify a case known as “West Virginia vs. EPA” that has been dragging on since 2016.
At the time, the US coal industry and nearly 20 conservative states wanted to know from the Supreme Court whether the EPA was going out of bounds. In the run-up to the major climate summit in Paris in 2015, Obama had presented the Clean Power Plan, an ambitious plan that would drastically reduce greenhouse gas emissions, mainly through strict regulations for coal-fired power plants.
Obama had assigned the environmental agency an important role in this plan. Greenhouse gases were bad for the environment, Obama argued, which is why the Air Pollution Act allowed the EPA to regulate its emissions. By defining greenhouse gases as “pollution,” he was able to bypass Congress and decree that the EPA had the power and even the duty to combat this pollution.
Republican opponents of Obama’s climate policy, however, felt the president had stretched the definition of air pollution too far. Climate policy touched society deeply and had such major economic consequences that only Congress should be allowed to rule on it, they thought. And so they asked the Supreme Court to ban Obama’s plan. In 2016, the court issued a preliminary ruling: Obama and the EPA went too far by passing Congress. The president had to suspend his plan pending a final verdict.
Is no longer necessary
That verdict never came. The main reason for this was that the judgment was no longer necessary. After his election victory, President Donald Trump ended all climate ambitions of the US government in 2017. The Clean Power Plan went in the trash and the EPA was sidetracked by Trump. The EPA found that it no longer had its powers to reduce greenhouse gases. And Trump saw no role for the federal government to do that either.
After the victory of Joe Biden, who does want to pursue a firm climate policy again, the Clean Power Plan has long since become obsolete. The reduction that Obama hoped to achieve in 2030 with the plan was already achieved in 2019 without any policy. Despite Trump’s promises to revitalize the coal industry, hundreds of old coal-fired power plants were closed during his tenure, more than under any other president. Gas-fired power stations and energy from solar and wind also turned out to be the most attractive option from an economic point of view.
One Democratic senator has been blocking Joe Biden’s investment plan for months
The question is therefore why the Supreme Court want to pass judgment now in the case against the EPA. Biden administration lawyer Elizabeth Prelogar said there is no reason for the Court to rule on the case now. She even wondered whether the Court should rule as long as the EPA doesn’t use any powers to regulate greenhouse gases, and as long as the president has no plans at all to involve the EPA in his climate policy.
The coal industry and conservative states think otherwise. What’s at stake here, West Virginia Attorney General Patrick Morrisey said recently, is who makes the rules in the US. “Are they unelected bureaucrats or the representatives of the people in Congress?”
Judge Samuel Alito agrees with Morrisey. In his view, the question is whether the EPA is right to “claim power to set industrial and energy policies and balance issues such as jobs, economic impact, the potentially catastrophic effects of climate change, and costs.”
Back door closed
In fact, the background question is whether the US government is capable of pursuing an ambitious climate policy. By closing the back door to the EPA, Republicans hope to thwart President Biden’s climate policy. It is nearly impossible to get a majority for that policy in the divided Congress. For months, one Democratic senator — Joe Manchin, not coincidentally from West Virginia — has been blocking President Joe Biden’s grand investment plan. Large parts of his ‘Build Back Better’ plan are about climate.
West Virginia Attorney General Lindsay See, who spoke at the hearing, said the scope of the environmental agency’s powers should be made clear once and for all. She says the EPA can now create policies “in ways that cost billions of dollars, affect thousands of businesses, and are designed to address a problem with global impact.” According to See, this means that the agency goes far beyond its powers.
Judge Brett Kavanaugh seemed to agree with her. He said Congress should speak clearly “if it wants to give an agency powers of great economic and political significance.” Attorney Prelogar reminded Kavanaugh that it was the Supreme Court that ruled in 2006 that greenhouse gases were covered by the air pollution law, and that the EPA had the right to regulate them.
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