On Courts, Climate Clarity and Progress
Analyzing the U.S. Supreme Court's ruling on West Virginia v. EPA
As humanity grapples with one of the most complex and sweeping challenges in its history, it’s logical to turn to experts, scientists, engineers, policymakers, or world leaders in search of guidance and solutions.
What most likely wouldn’t do is seek answers from six judges ‘interpreting’ a 250 year old document. But that’s where the United States finds itself in 2022 — an era where America joins only Nicaragua and Poland in rolling back reproductive rights, as the rest of the world moves forward.
By now, you’ve surely heard the news on the U.S. Supreme Court’s ruling on West Virginia v. EPA. It’s not great.
But, it’s also far from game over on U.S. climate progress, as behind-the-curve as we might be. Nor is it the complete dismantling of U.S. federal agency regulatory power many feared, which would be catastrophic.
Here are some important takeaways to keep in mind, analysis, and constructive next steps in terms of where we go from here:
#1 - Emission Scopes Matter, So Do Regulatory Scopes
When the Environmental Protection Agency (EPA) officially determined greenhouse gases harm the public in 2009, the agency tried to set pollution limits for U.S. energy facilities and the overall power grid under section 111(d) of Clean Air Act.
That directly led to coal-loving West Virginia’s suit which prompted this week’s ruling.
SCOTUS’s core ruling in West Virginia v. EPA is that Congress didn’t give the EPA authority to cap nationwide carbon dioxide (CO2) emissions in section 111(d) of the Clean Air Act, and the act doesn’t give the EPA authority to regulate the power grid as a whole. The logic of the ruling is dubious (and the case itself is more than a little weird), but it’s a narrow ruling, focused on section 111(d).
Importantly, the SCOTUS ruling does not say the EPA can’t regulate carbon pollution from America’s existing power plants.
It also does not strip the EPA of its ability to regulate climate pollution at all.
So SCOTUS took an important climate tool away from the EPA, and chipped away at its scope of authority. But the ruling still leaves the EPA with many tools and methods to work toward protecting the environment and supporting decarbonization of our energy supply.
Not good, but not a disaster either.
#2 - We Can “Let the States Decide,” But Really it’s Also the Market that Decides
Today’s SCOTUS likes to cherrypick when to defend vs. undermine states rights in varying policy areas. Let the state decide on abortion, but not gun access.
As convoluted and partisan as that may be, it’s important to remember our energy supply operates at multiple levels.
At the local level (municipal, city, state), energy utilities operate or contract for power from various generaton sources, like nuclear, gas, coal, and renewables. Utilities, meanwhile, are regulated by Public Utility Commissions (PUCs).
Utilities are highly-regulated, given their critical role in supplying customers like hospitals and households with power. But, for better or for worse, most are private, for-profit businesses.
The important point here — and one we’ve made before — is that, regardless of this SCOTUS ruling, renewables are winning the economic and cultural battle against fossil fuels. West Virginia can sue all it wants, but coal can’t compete with solar or wind any more, and no SCOTUS ruling can change that.
Renewables are — and will continue to be — the fastest-growing form of energy globally, now representing over 15% of global generation capacity. While it gets more and more difficult to finance coal and other fossil fuel generation due to investor ESG concerns, renewables are more bankable than ever.
Conservatives, often strong advocates for “free markets,“ will have to admit that, in this particular market, clean energy is the inevitable winner.
#3 - Federal, State, and Local Action All Have Pathways to Progress
In spite of West Virgina v. EPA, the EPA still maintains clear and recognized federal authority to keep tackling greenhouse gas emissions and reduce dangerous air and water pollution like mercury, lead, arsenic, smog, and CO2. This decision leaves that squarely within EPA's power, and they'll keep attacking the problem from different angles.
Meanwhile, cities and states — particularly blue ones — keep locking in renewable energy mandates. 1 in 3 Americans now live in a region committed to 100% clean energy, and just in the past year states like Connecticut and Maryland have enacted new renewable energy laws and targets.
Equally importantly, given a state like California or New York’s role in the national (and even global) economy, companies will follow the strictest environmental law. Where California leads, the private sector follows.
State policy, municipal policy, and utility rate design might feel administrative and boring, but they’re actually incredibly important for climate policy. Even better, this is work you caninfluence in your own back yard, and at every election cycle.
The EPA and federal government have never decided our energy mix: it’s the cities, states, utilities, and PUCs that implement America’s energy.
So remember, you can have a major impact on climate change locally. Understand your local power utility, who controls its power and decision-making, and what local laws or proposals will make it more climate-friendly. It’s *very* likely there’s already a climate or environmental advocacy group working on this — find ways to get involved or support them.
Going state-by-state, the rough math is we can still transform about 1/2 to 2/3rds of the U.S. economy’s climate footprint, even if a dysfunctional or rogue SCOTUS is undermining federal authority or trying to turn the clock back in the other direction.
This work is far from over, a lot of positive change really is happening, and that’s not up for SCOTUS to decide.
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