Supreme Court Graciously Allows EPA To Regulate Power Plant Emissions. For Now.
Fingers crossed. Vote Blue.
[We are leaving the byline off this post by Doktor Zoom until substack has had a chance to investigate why the bylines hate Doktor Zoom so much.]
The Supreme Court, possibly just teasing us, allowed the Biden administration to enforce its recently enacted rules to reduce greenhouse emissions from power plants. Or at least the Court on Wednesday turned down an “emergency” request by Republican-led states to block the new EPA climate rule from going into effect while the case is argued in the DC Circuit Court of Appeals, after which it will almost certainly be appealed back to the Supremes again, when it could still be struck down. Keep your fingers crossed for a year or so.
A cynical person might even suggest that some justices simply put off a decision affecting a crucial environmental policy until after the election. But that would mean the Court was considering politics, which is simply unthinkable.
Because this was only ruling whether to block the rule while the case moves forward, the Court’s brief decision didn’t address the substance of the law, just the request to keep the regulations from being implemented.
What’s That EPA Rule Again?
The EPA power plant rule finalized in April sharply cut down on emissions of carbon dioxide from existing coal plants and from new natural gas plants. They require any coal plants that plan to keep operating past 2039 to reduce their emissions by 90 percent by 2032; if operators choose to shutter them by 2032, they can keep running with no changes until then.
New “baseload” plants fueled by fossil gas — those that will operate more than 40 percent of the time — will also have to meet the same requirement. The regulations on coal and new gas plants would result in massive reductions in greenhouse emissions, because coal is the most carbon-polluting fuel in use.
The regulations don’t specify what technology power plants would be required to use to meet the new emissions limits, but the only existing method would be carbon capture from the plants’ smokestacks. The Inflation Reduction Act has generous subsidies for carbon capture and storage, but the technology is still fairly new, controversial, and hasn’t been deployed at scale. But it’s also why the power industry has long said regulations aren’t needed, since carbon capture will bring down emissions. In effect, Biden’s EPA called the industry’s bluff: You’ve been saying carbon capture will take care of emissions, so that’s cool, get to it.
Didn’t SCOTUS Already Fuck Over Power Plant Rules?
Yes, kinda, but this time out, the EPA carefully constructed its new rule to conform with the boundaries set by the Supreme Court’s weirdass 2022 decision in West Virginia v. EPA that threw out Barack Obama’s Clean Power Plan. That plan mandated that states draw up regulations to reduce power plant emissions, but left it up to the utilities to figure out how to meet them, though obviously the easiest would be to switch to renewable energy like wind and solar. The Court decided that the EPA could only regulate pollution from individual plants, instead of requiring wider change. As Robinson Meyer explains at Heatmap, that landmark (but fucking stupid) opinion had the effect of ruling
that the EPA could restrict greenhouse gas pollution from power plants only by requiring new technology, such as carbon capture equipment, to be installed at the plant itself. The agency couldn’t require utilities to stop burning fossil fuels and build more renewables.
West Virginia v. EPA also gave us the stupid-ass “major questions” doctrine, which says that federal agencies can’t take action on “major” issues without explicit authorization from Congress, and it’s up to the whims of the Supreme Court whether any matter is “major.”
What Are Red States Mad About Now?
While the lead plaintiff this time out is Ohio, joined by a bunch of other red states, the argument is pretty much the same, even if the regulations are designed to live within the strictures of the 2022 decision. The plaintiffs claim that the rule goes beyond what Congress allowed in “Section 111” of the Clean Air Act, even if they only regulate individual power plants.
If you’re a fan of Catch-22, you might appreciate the fact that West Virginia Attorney General Patrick Morrisey says the new rule also violates the “major questions” standards because they fit with what the Court previously ruled. In a statement on yesterday’s decision, Morrisey argued that the EPA rule “strips the states of important discretion while forcing plants to use technologies that don't work in the real world.” That would be carbon capture, which the industry up until five minutes ago insisted would make federal carbon limits unnecessary.
In the court filing leading up to yesterday’s decision, Morrisey griped that “Once more, EPA looks to Section 111 to justify imposing major, jarring shifts in the nation’s power market.” He claimed carbon capture and storage is an “important emerging technology ... but it’s not feasible on the rule’s scale or timeline.”
The EPA can’t regulate all utility emissions, just those from individual plants, for which it can require new emission-reducing technology. But it also can’t regulate emissions from individual plants by requiring new tech. That’s some catch!
Will This Ruling Hold Up?
Alas, as we noted, it might not. The Court’s order denying a stay of the new regulations notes that Clarence Thomas was ready to block them right now, and that Samuel Alito, a sure bet to block, “took no part in the consideration or decision” of the application for a stay.
Justice Kegstand, joined by Neil Gorsuch, wrote that he believed the plaintiffs “have shown a strong likelihood of success on the merits as to at least some of their challenges” to the rule, but that there was no need to stay the rule now because power plants won’t have to start complying with the regulations until June of next year. By then, the DC Circuit should finish considering the case, after which the losing party could then appeal to the Supremes again.
There is at least a fair chance that the DC Circuit will rule in favor of the power plant regulations. It already denied the stay, and what’s more it found that the EPA plan didn’t violate the “major questions” guidelines. Not that the Supremes have to agree when this comes back to them.
Also worth noting: neither John Roberts nor Amy Coney Barrett weighed in on the brief opinion. While they’re both awful, there’s the slimmest chance they might find that EPA did indeed comply with their 2022 limits, and that the rule passes muster. We are, to be sure, talking itty-bitty teensy chance there.
And just to focus your attention, this is just one more reason to vote for Kamala Harris. If Donald Trump is elected, he has already pledged to reverse the EPA power plant rule entirely. With Harris, we can at least be certain the rule will get the strongest possible defense as the case goes forward.
[NBC News / Heatmap News / Mother Jones / Order in Ohio v. EPA / Photo: Tony Webster, Creative Commons License 2.0
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OT - using the caramelised onion, bacon, and bourbon relish in a focaccia was a great idea. It is delicious.
I was also generous with the rosemary. Before baking I topped the whole thing with red onions soaked in balsamic vinegar.
Just updated with what passes for optimism in 2024:
"Neither John Roberts nor Amy Coney Barrett weighed in on the brief opinion. While they’re both awful, there’s the slimmest chance they might find that EPA did indeed comply with their 2022 limits, and that the rule passes muster. We are, to be sure, talking itty-bitty teensy chance there."