The Supreme Court’s climate decision, explained

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When the Clean Air Act was passed by Congress in 1963, the immediate need was obvious. Decades of industrialization had led to rampant dumping of pollutants into the air — particulates, smog, carbon monoxide — endangering public health and quality of life. After the Environmental Protection Agency was formed (as the original law was expanded), management of limiting air pollution became part of its mandate. The legislative branch wanted cleaner air and the EPA was the vehicle the executive branch used to make it happen.

It worked. America’s air got much cleaner and, while there are still emissions of small particles and ozone, things improved. The law was effective.

In recent decades, though, a new form of emission emerged as a risk to public health: greenhouse gases. For years, heavy industry produced air pollution that made individuals sick directly. Now the attention of the scientific community turned to emissions that helped blanket the planet with heat-trapping gas, endangering humanity broadly.

We don’t usually think of carbon dioxide — the most common greenhouse gas — as a pollutant. We exhale carbon dioxide; we don’t exhale smog. But then, not everything we emit from our bodies is something we think should simply be allowed to constantly surround us. This is why we have sewer systems. So attention turned to this different form of pollutant.

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When climate change first became a subject of public attention about 15 years ago, there was a push for congressional legislation that would establish a mechanism for limiting carbon dioxide in particular. The primary source of carbon dioxide emissions is the generation of electricity; specifically, burning coal. So Congress debated various ways to limit coal-burning, including a system in which carbon dioxide emissions would become part of a marketplace, letting emitters — polluters, if you will — trade the ability to produce carbon dioxide the way someone might trade stock.

But the emergence of climate change as a political priority soon faced a backlash. Barack Obama’s election sparked a strong oppositional force from the right that included rejection of new legislative efforts on greenhouse gases. This response was in part a function of fervent advocacy by fossil fuel interests, but it soon blossomed into a central part of the conservative worldview. Addressing climate change was presented as an intrusion on capitalism that was trying to fix something that wasn’t an issue … or, later, that wasn’t an issue the United States alone could fix.

Activists had already been agitating for another way to curtail greenhouse gas emissions: having the EPA use its power to regulate pollutants to create rules that would limit the release of carbon dioxide. The EPA declined to do so in 1999, pushing the fight to the courts. After years of back-and-forth, the case got to the Supreme Court. In its 2007 ruling in Massachusetts v. EPA, the court (led by its liberal faction) determined that the EPA could use its Clean Air Act authority to regulate carbon dioxide and other greenhouse gas emissions.

Seeing its legislative effort aimed at the same outcome stymied in Congress, the Obama administration released regulations through the EPA meant to limit emissions and push a transition away from coal to cleaner energy sources. Regulations targeting new plants were created. Regulating existing ones was trickier both legally and practically — and also more important for combating climate change.

The improvement in hydraulic fracturing technology (fracking) meant that natural gas was suddenly far cheaper, spurring some generators to transition from coal to natural gas simply for market reasons. But coal producers and some coal plants objected to proposed regulations that would hurt their businesses. They got a boost in 2015 when the Supreme Court determined in Michigan v. EPA that the agency had to consider economic costs when establishing environmental rules, a shift from its previous mandate to center its decisions on public health.

A number of red states sued the EPA to block regulations aimed at reducing emissions, leading to the case the court decided Thursday, West Virginia v. EPA. At its heart was the question of the EPA’s authority to regulate emissions from existing power plants. The majority decided that the agency had no such authority.

The debate contained in the majority opinion, written by Chief Justice John G. Roberts Jr., and in the dissent by Justice Elena Kagan, is heavy on the particular legal question of what the EPA tried to do. But it also contains a broader debate about addressing climate change in general.

Roberts doesn’t mention the Massachusetts decision, instead focusing on why he doesn’t think Congress meant to grant the EPA the authority it deploys and noting, importantly, that it needed explicit authority in this case. Kagan’s response argues forcefully that Congress regularly cedes questions of implementation to government agencies.

“Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise,” Kagan writes. “That is what Congress did in enacting Section 111” — the section of the Clean Air Act at issue. “The majority today overrides that legislative choice.”

“Why wouldn’t Congress instruct EPA to select ‘the best system of emission reduction,’ ” she added later, “rather than try to choose that system itself? Congress knows that systems of emission reduction lie not in its own but in EPA’s ‘unique expertise.’ ”

Kagan did mention Massachusetts, quoting its finding that “there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter.” But her argument did not carry the day. The EPA’s ability to curtail those emissions from existing power plants was truncated.

What’s changed since Massachusetts in 2007? A few things. One is that climate change became a sharply partisan issue, helping spur quick reactions from red states to Obama’s emissions proposals. Another is the composition of the court. Roberts joined Justices Clarence Thomas and Samuel A. Alito Jr. in the minority on Massachusetts; now they have three ideological allies that allowed their view to carry the day. They have those allies, of course, thanks to the cascade of factors that allowed Donald Trump to appoint three people to the court.

In his majority opinion, Roberts includes a striking quote from the 1992 decision in New York v. United States, in which the court determined that federal legislation imposed too heavily on state authority. The Constitution, the majority opinion in that case reads, “divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” Roberts picked out that “crisis of the day” quote, arguing that while “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ ” Congress didn’t give the EPA the authority to do so.

It’s clear that Roberts is trying to suggest that the emergence of something important doesn’t authorize extraordinary uses of power. But the comparison of climate change — a trend more than a century old that will endure for decades or centuries to come — to a “crisis of the day” is jarring. It reads as dismissive, as a suggestion that climate change is a flight of fancy.

The West Virginia decision released Thursday will itself probably have a significant shelf life, as a marker of how the United States repeatedly failed to act to reduce the worst effects of climate change.

Read More:The Supreme Court’s climate decision, explained

2022-06-30 19:16:00

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