Supreme Court Ruling Deals a Blow to Biden’s Climate Agenda

Back in April, the United Nations warned that we had reached a “now or never” moment for world governments to make immediate, steep reductions in greenhouse-gas emissions to secure a livable future on a warming planet. But political realities have confounded President Joe Biden’s signature efforts to meet that moment, including his defunct Build Back Better spending plan. 

Now, the U.S. Supreme Court has thrown up a new barrier against climate action. The high court today issued a 6-3 ruling in West Virginia v. EPA blocking the U.S. Environmental Protection Agency (EPA) from writing or enforcing broad rules designed to shift the power sector toward cleaner energy sources. 

By preventing the EPA from making utilities switch away from fossil fuels, the court’s decision casts serious doubt on the Biden administration’s ability to deliver on its goal of powering the country with carbon-free electricity by 2035. Adding to that challenge is opposition to sweeping climate policy in the Senate. Last fall U.S. Sen. Joe Manchin, a West Virginia Democrat with financial ties to the coal industry, killed a clean electricity program that was core to the president’s major legislative effort to fight climate change. A stripped-down version of that bill remains mired in negotiations. 

The court’s decision was not as sweeping as some legal experts feared, as it still preserves the agency’s more limited ability to regulate emissions from individual power plants. Nonetheless, it could reverberate well beyond the EPA, preventing agencies across the federal government from implementing all sorts of rules, from economic policies to environmental protections. Its broader consequences will take time to become apparent. “What’s clear, though, is that this gives polluters a new tool upon which to delay and stall sensible environmental and public health regulations,” says Howard Learner, executive director of the Chicago-based Environmental Law and Policy Center.

Today’s ruling is the result of a yearslong effort by industry-supported conservative lawmakers and legal activists to use the judicial branch, including the Supreme Court, to weaken the executive branch’s ability to create climate policy through agencies like the EPA. West Virginia Attorney General Patrick Morrisey, the lead plaintiff in the case, said the ruling correctly empowers Congress to decide how to address the issue. “This is about maintaining the separation of powers, not climate change,” Morrisey said in a statement. “Today, the Court made the correct decision to rein in the EPA, an unelected bureaucracy.”

The Supreme Court’s decision to hear the case at all signaled that its conservative majority aimed to limit agencies’ authority. At issue was the Clean Power Plan, a 2015 Obama administration rule that set the nation’s first standards to reduce carbon pollution from power plants. The plan set carbon-reduction goals for states, which they could reach by various means, including switching from coal and gas to renewable power. The EPA said the plan would cut emissions by about one-third by 2030, citing its authority under the Clean Air Act to regulate pollutants. 

The twist is that the rule never took effect; the Supreme Court put it on hold in 2016 and the Trump administration repealed it in 2019. (By then power companies had retired enough old, expensive-to-run coal plants that the Clean Power Plan’s goals had already been met.) The Trump EPA came up with its own plan, the dubiously titled and much-less-stringent Affordable Clean Energy Rule, but a federal appeals court tossed that rule out, so it never took effect, either. The Biden administration has been working on its own EPA rule that it says will not mirror the Clean Power Plan. 

In other words, there are no regulations in place for the Supreme Court to overturn. Nonetheless, the conservative-majority high court made the surprising choice to hear the challenge brought by coal companies, Morrisey, and other Republican state attorneys general. Their argument invoked something known in legal circles as the “major questions doctrine.” The basic idea is that agencies can only write and enforce regulations with national significance, such as those in the Clean Power Plan, if they have clear instructions from Congress to do so. That view gained ground in the Supreme Court when Trump appointed three conservative justices, while the prevailing view—that courts should give agencies discretion to reasonably interpret ambiguous statutes—has lost adherents. 

In the court’s opinion, Chief Justice John Roberts cited the major questions doctrine, stating that the government must point to a clear direction from the legislative branch to justify capping carbon emissions. “It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,” Roberts wrote. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

The court’s three liberal justices disagreed, arguing that, through the Clean Air Act, Congress clearly directed the EPA to choose “the best system of emission reduction,” Justice Elena Kagan wrote in the dissenting opinion. No one disputed that a sector-wide approach like the Obama EPA’s would be the most effective, Kagan added. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

The court’s decision arrives as nearly half of the contiguous United States is in drought, including a megadrought in the Southwest that scientists say is the worst in at least 1,200 years and driven by climate change. Wildfires have burned 3.6 million acres already this year, the most in a decade. Meanwhile, people around the world are suffering through extreme heat events and deadly flooding made more likely by climate change. 

Noting the health effects of these events, the American Medical Association, American Academy of Pediatrics, and other medical groups filed a brief supporting the government. Among other impacts, rising temperatures lead to more heat-related hospitalizations and deaths, longer wildfire seasons that produce more lung-damaging smoke, and increased ground-level ozone, a harmful pollutant. “Driven by fossil fuel emissions, climate pollutants harm public health across every segment of American society and in every state,” the groups wrote. 

Along with its human health hazards, climate change is the single biggest threat to birds, experts say. Two-thirds of North America’s avian species face the threat of extinction as the planet heats up, but limiting warming to 1.5 degrees Celsius will avoid that threat for some 150 species, Audubon scientists reported in 2019. The danger extends beyond birds; rising temperatures put 9 percent of all species worldwide at risk of disappearing in about a decade, according to the United Nations. And what happens at power plants will significantly shape the outlook for biodiversity and for people, since electricity generation is the nation’s second-largest source of heat-trapping emissions after transportation.

The ruling rejects arguments not only from the Biden administration and public health and environmental advocates, but also, perhaps counterintuitively, from some power-plant owners. Since environmental regulations shape their operations and affect their bottom line, power companies like to have certainty about what the rules are so they can plan for the future. Nervous about the confusion that might lie ahead, the Edison Electric Institute, a trade group representing large utilities, filed a brief urging the court not to strip the EPA of its authority to regulate greenhouse-gas emissions. Doing so would lead to a “deluge” of lawsuits, the group warned. “This would be chaos.” 

While the court’s ruling limits what the administration can do to address the root cause of climate change, advocates say President Biden must use the tools still at his disposal, including the EPA’s remaining authority over individual power plants. The Congressional Progressive Caucus called on the White House to declare a climate emergency and end fossil fuel subsidies, among other measures. “Congress must also meet this moment with a renewed sense of urgency,” U.S. Rep. Pramila Jayapal, a Washington Democrat, said in a press release from the caucus, which called on lawmakers to pass bills to spell out EPA’s authority to regulate power plant emissions and make major investments in clean energy. 

Legal experts are still sifting through the ruling for signs of its broader implications beyond the EPA. It could be a bad sign, for example, for the Securities and Exchange Commission’s proposal to require companies to disclose their climate impacts and liabilities. And it may offer a preview of a case the court will hear in the fall that could similarly limit the reach of the Clean Water Act.

Today’s ruling closely follows others that will dramatically reorder American life, and the Supreme Court term that just ended will no doubt be remembered first and foremost as the one that overturned Roe v. Wade. But like that historic decision, the climate ruling has significant implications we can’t yet fully understand.