The Supreme Court could once again put action on climate change on hold as it weighs whether to pause new pollution rules targeting coal-fired power plants.
The U.S. Environmental Protection Agency (EPA) this year finalized rules aimed at curbing greenhouse gas emissions from coal-fired power plants. But red states and industry groups are challenging the EPA in court and asking the Supreme Court to step in and block the rules as they duel.
The request is now listed in the Supreme Court’s so-called “shadow cases” — meaning the court can essentially issue suspensions of the rules at will. Since Donald Trump appointed conservative justices, the courts have made it harder for federal agencies to regulate industry. This is another opportunity to undermine the EPA’s efforts to limit the pollution that contributes to climate change.
“A few years ago, I would have thought that request was ridiculous.”
“Just a few years ago, I would have thought such a request was ridiculous, but given the way the courts work, I don’t laugh at anything anymore,” said Sambav, senior vice president of programs at the nonprofit environmental law organization Sambhav Sankar said.
The rules are a cornerstone of the Biden administration’s efforts to meet climate goals set out in the Paris Agreement. They require coal-fired power plants to be expected to continue operating for at least 15 years to reduce climate pollution by 90%. Coal happens to be the dirtiest fossil fuel, producing more carbon dioxide when burned than oil or natural gas.
When the EPA finalized the plan in April, it was arguably only a partial victory for environmental and health advocates. These rules must be consistent with the Supreme Court’s 2022 decision on State of West Virginia v. Environmental Protection Agency. This is a landmark view that reinforces the “significant issues” doctrine that federal agencies should not have the authority to dictate matters of national significance without Congress passing legislation explicitly allowing federal agencies to do so. The decision means the EPA will have no authority to decide whether U.S. electricity comes from fossil fuels or clean energy sources like wind and solar.
As a result, the EPA’s plan to control greenhouse gas emissions allows fossil fuel power plants to continue operating as long as they install technology that captures their carbon dioxide emissions. Fossil fuel companies promote carbon capture and storage as a way to combat climate change without having to abandon coal, oil or natural gas. But reliance on carbon capture has disappointed health and environmental advocates who had hoped a transition to renewable energy would combat climate change and Push utilities to phase out fossil fuel plants that emit soot and other pollutants into nearby communities.
Now, the industry thinks carbon capture and storage (CCS) technology isn’t even ready to help fight climate change — at least not to the extent that the EPA says is feasible in its power plant rules. Since July, trade groups representing utilities and mining companies, as well as a handful of red states led by West Virginia and Ohio, have filed petitions asking the Supreme Court to put a stay on the EPA’s new rules on CO2 emissions (and a separate rule on CO2 emissions). . The U.S. Court of Appeals for the District of Columbia Circuit previously declined to issue a stay.
The petitioners argue that capturing 90% of CO2 is not yet an achievable goal—the technology has not yet been demonstrated at that scale, and there are no pipelines in place to safely transport and store greenhouse gases after they are captured.
“The rule requires operators to divert generation due to an inability to comply with 90% of CCS systems,” the National Rural Electric Cooperative Association said in its stay application. “The EPA is once again trying to change the electric power industry by forcing generation to shift to its favored sources.” They are essentially again invoking the significant issues doctrine to challenge the new rules.
The Biden administration defended the EPA rule in a response filed with the Supreme Court this week, saying the agency had reviewed the technology and set achievable carbon capture goals. The EPA concluded that the case “does not involve fundamental questions of legal interpretation that might require court intervention.” It also noted that a federal appeals court last month chose not to issue a stay on the matter, saying the litigants had not shown they could successfully challenge the merits of the rule or that it was reasonable. question”. Additionally, the deadline for compliance does not take effect until 2030 or 2032, making it difficult for petitioners to prove that they will suffer “irreparable harm” without a reprieve.
Nonetheless, the groups have since asked the Supreme Court to stay the execution through its emergency (or shadow) docket. The emergency agenda, once devoted to extremely time-sensitive issues such as a moratorium on executions, is now filled with requests to suspend environmental regulations. This is a quick process that allows the court to make a decision without much briefing on the issue or hearing oral arguments on the case.
“A lot of lawyers and others are deeply disturbed by this.”
“A lot of lawyers and others are deeply disturbed by this,” said Michael Gerrard, founder and academic director of Columbia University’s Sabin Center for Climate Change Law. “The Supreme Court can do some very important things without complete information.”
The trend has been growing since the Supreme Court unexpectedly halted the Obama administration’s attempts to regulate greenhouse gas emissions from power plants in 2016. The Obama-era rules never took effect and were eventually rolled back by the Trump administration.
Now, history may be repeating itself. During his presidential campaign, Donald Trump pledged to once again repeal power plant emissions rules. The Supreme Court can decide at any time whether to grant a stay. Their decisions may affect the case The U.S. Court of Appeals for the D.C. Circuit is still considering whether the rules should be struck down entirely.
The Supreme Court’s decision on the stay could also affect new rules the EPA is still developing for existing gas-fired power plants, which are a larger source of electricity than coal in the United States. The rules are not expected to be enacted until after the November election, giving Trump another chance to change course.
“I think what’s more important is the outcome of the upcoming election,” Sankar said. However, the legal community has been stunned by recent landmark rulings by the Supreme Court that undermined the EPA’s ability to craft regulations. In June, it overturned a legal doctrine called “Chevron deference” that had previously allowed federal courts to defer to the opinions of the EPA and other federal agencies in disputes over how to interpret ambiguous language in the legislation.
“If the Supreme Court’s untrained, unscientific justices are once again willing to second-guess EPA scientists, it’s understandable that those scientists will become more shy,” Sankar said.
