The EPA still has authority to reduce climate pollution from power plants, even after the Supreme Court’s decision. Here’s what the Biden administration should do next.
Chris Jordan-Bloch / Earthjustice
The Supreme Court’s decision in West Virginia v. EPA limited the EPA’s ability to reduce climate pollution from power plants. However, significant authority remains.
Here’s what’s next for climate action after West Virginia v. EPA.
What did the Supreme Court say, exactly?
This Supreme Court, and its newly formed conservative supermajority, closed out its explosive first term by limiting the authority of the EPA to lower greenhouse gas emissions and combat the climate crisis. In a 6-3 decision, the Supreme Court held that the Clean Air Act did not give the EPA the authority to set emissions limits for existing power plants based on the power sector’s ability to shift to cleaner renewable energy sources from dirty fossil fuels. The process, known as “generation shifting,” is the best system of emission reduction and would have been a powerful tool in helping our country reach its climate goals.
Because the power sector is one of the largest emitters of greenhouse gas emissions in the country, this decision is a blow to EPA’s efforts to regulate climate pollution at power plants and constrains the tools they can use to tackle this problem. However, the Court did not altogether remove EPA’s authority to regulate carbon dioxide or other power plant pollutants—in fact, the EPA can and must still issue regulations to do just this.
How did the court make this determination fifty years after the Clean Air Act was signed into law? The conservative justices say their decision relies on the so-called “major questions doctrine,” (which, as Justice Kagan notes in her dissent, is not a term the Court has ever used before). According to this doctrine, the conservative majority asserts that any issue with major economic or political consequences requires explicit congressional authorization in law. And yet, the standard for when this framework would apply remains ambiguous. Indeed, Justice Kavanaugh, when he was on the D.C. Circuit, said that it is a “know it when you see it” test. The conservative Justices have given themselves a powerful deregulatory tool to advance an ideology of smaller government, rather than a clear aide to interpreting the law. With the stroke of a pen and a “major questions” declaration, they can, from the bench, determine how much regulation is too much regulation. From the striking down of OSHA’s vaccine mandate to the West Virginia v. EPA decision, they’re only scratching the surface of how this dangerous doctrine could limit the ability of federal agencies to take action on some of the most pressing challenges facing our country.
What’s the impact on EPA’s authority?
The West Virginia ruling represents a setback to EPA’s ability to regulate carbon pollution from existing power plants. However, despite the ruling, EPA still retains significant authority to write future rules. While standards based on generation shifting are no longer allowed, the Clean Air Act still allows—and requires—EPA to regulate greenhouse gas pollution from the power sector. EPA can still set standards for existing power plants under Section 111(d) of the Clean Air Act, as long as the new “best system of emission reduction” does not require generation shifting to clean energy.
Additionally, while the Supreme Court has limited the tools EPA can use to tackle this problem under section 111(d) of the Clean Air Act, many other parts of the Clean Air Act were not addressed in the ruling and remain fully intact. EPA still retains the ability to regulate greenhouse gas pollution from new power plants under section 111(b). The Agency can also regulate carbon pollution from automobiles and methane emissions from oil and gas wells. The entire suite of public health rules related to conventional air pollutants was also unaffected by this decision. Ample authority remains for EPA to tackle air pollution and climate change.
While the West Virginia v. EPA decision, by itself, does not restrict EPA’s ability to set rules in these areas, it does create a troubling precedent. By applying the major questions doctrine to EPA power plant rules, the Supreme Court has signaled a skepticism of administrative action that it might well apply to a future EPA rule that comes before the Court. The West Virginia decision left very unclear what rules will be subject to the new doctrine instead of normal statutory interpretation. This ambiguity is likely intentional, allowing the Court to apply major questions only when doing so achieves its deregulatory goals.
While the major questions doctrine presents a risk to future regulations, the Supreme Court only takes around 60 cases each year—and only a small minority of those cases relate to administrative law or the EPA. The EPA needs to continue addressing climate change in an ambitious way, recognizing that the majority of its new rules are likely to stick. The only way that the West Virginia decision would seriously hamper EPA’s efforts is if the agency clips its own wings. By acting ambitiously on a wide range of standards, EPA maximizes its chances of making progress on pollution.
Next steps for the EPA on power plant pollution
Now that the Supreme Court has released its decision in West Virginia v. EPA, the EPA must move quickly to finalize a new suite of rules based on its extensive remaining authority. There are 10 rules specifically that EPA should pursue to tackle power sector pollution.
The two most obvious rules for EPA to pursue are direct regulation of greenhouse gasses from existing power plants and new power plants. EPA can and must finalize a new 111(d) rule that determines a new “best system of emission reduction” for existing power plants. While the system that EPA identifies cannot assume generation shifting, states maintain much flexibility in implementation and could potentially still use generation shifting as a strategy to achieve EPA’s pollution reduction targets if they choose.
EPA should also finalize a rule addressing carbon pollution from new power plants, under section 111(b). This rule would apply to the more than 200 new gas plants utilities have proposed around the country. Only by addressing carbon pollution from existing and new power plants can the EPA stay on track to achieve President Biden’s climate promises. The White House has said drafts of both of these rules will be released in March 2023—but they must move even faster.
In addition to these two rules explicitly targeting greenhouse gas pollution, EPA should also tighten eight regulations around conventional pollutants. These rules would dramatically improve air and water pollution while also creating substantial benefits for the climate. These public health standards include:
- A stronger Mercury and Air Toxics Standard (MATS) rule that limits mercury, arsenic, and other toxic compounds from coal plants.
- A stronger National Ambient Air Quality Standard (NAAQS) for small particulate matter (also referred to as soot or PM2.5), which causes lung disease and asthma.
- A stronger national standard (NAAQS) for ozone, which causes smog, lung disease, and warming.
- A new Good Neighbor rule that reduces nitrogen oxide and smog emissions that cross state borders.
- A strong Coal Ash rule that creates national safety regulations for the disposal of toxic coal ash from coal-fired power plants.
- A Regional Haze rule that requires states and the federal government to collaborate to improve visibility in national parks and wilderness areas
- A strong Startup, Shutdown, and Malfunction rule that closes loopholes allowing power plants to emit more pollution during startup, shutdown, and malfunctions.
- Effluent Limitation Guidelines that limit water pollution from power plants into surface waters and wastewater treatment plants
Together, these ten rules would work to reduce the carbon pollution that drives climate change—and the traditional air and water pollution that harms public health and is borne disproportionately by disadvantaged communities and people of color. Air pollution leads to 100,000 premature deaths in the U.S. every year. The EPA must act with urgency to protect public health and the climate by finalizing these 10 rules.
To learn more about each of these rules and how you can get involved in our campaign to finalize them, visit 100cleanpower.com.
Other important avenues: Congress and the states
The climate crisis doesn’t care about novel legal doctrines and politics. It’s here now, and we’re already experiencing its consequences. Despite this ruling, the federal government still has the tools at its disposal to address it. We’ve said from the start that meeting a challenge of this magnitude requires a whole-of-government approach.
This ruling also makes it all the more important that Congress do its job, legislate, and pass a budget reconciliation package that includes strong investments in climate, jobs, and justice. These investments will help accelerate our transition to clean energy and ensure that our response to climate change is grounded in justice by directing resources to communities already experiencing its worst impacts.
States and local governments are also critical to addressing climate change, especially in light of the West Virginia v. EPA decision. While the decision impacts the EPA, it does nothing to hamper state and local authority. States and local governments have the ability to implement local zoning standards that take into account climate resiliency or ban new buildings from gas hookups while passing laws that enshrine their own climate goals to protect their future. They’re already doing so to great success. On the same day as the decision in West Virginia v. EPA, New York state rejected a permit for a large crypto mining facility in Upstate New York on the basis of its energy and climate impacts running inconsistent with New York’s climate goals set forward by its state law.
Last week, Rhode Island Governor Dan McKee also signed a bill committing Rhode Island to achieving 100% clean energy by 2033. With that addition, 21 states have now set 100% clean energy goals through the state legislature or governor’s office, in addition to DC and Puerto Rico. From coast to coast, state and local governments are taking action in the absence of federal leadership and will continue to be critical forces for climate action in the future.
Despite the setback from the Supreme Court, we all need to keep pushing the administration, Congress, and the states to go further, faster. This is no time to back down.