Supreme Court Kills EPA Too In Case You Thought It Was Just Tribal Sovereignty, Women, Classrooms Of Kids ...

This is fine.

In a decision that's certain to make getting the climate emergency under any sort of control truly impossible, the Supreme Court today sharply restricted the Environmental Protection Agency's ability to regulate carbon dioxide emissions from power plants. The 6-3 decision by the Court's "conservatives" makes it even less likely that the US will be able to reach President Joe Biden's goal of generating all the nation's electric power via clean energy sources by 2035, or to reach net zero carbon emissions overall by 2050.

 The decision, by Chief Justice John Roberts, pounded a stake made of a dead whale's jawbone through the heart of the 2015 Clean Power Plan. The Obama-era regulations never went into effect, blocked by the Court in 2016 due to lawsuits from Republican states and the coal industry; those lawsuits eventually resulted in today's decision.

It might be nice to have a planet that can sustain life for large mammals like members of the federal judiciary, Roberts ruled, but the EPA doesn't have the authority to get in the way of fossil fuel profits to do it. If Congress wants to help keep the planet habitable, well then it can always pass a law. Easy peasy!

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.' But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.

Good luck getting that past Roberts's own party — and if it passes, good luck winning approval from the Roberts Court. It's not like a sustainable Earth is anywhere near as important as avoiding regulatory overreach.

This is what the Court has decided is a brand new eternal constitutional principle that it’s pulled out of its ass, the “major questions” doctrine. A major question is any regulation that’s so novel that it can’t be left up to an agency like the EPA, working from established law, but instead needs a special new law authorizing it. Who decides how major a question must be in order to need new law? The Supreme Court!

Beyond stripping the EPA of the power to regulate CO2 emissions nationwide or even just statewide, the ruling limits future EPA actions to regulating individual power plants.

In her dissent (page 57 of the SCOTUS decision PDF ), Justice Elena Kagan, joined by Stephen Breyer and Sonia Sotomayor, wrote simply "So long and thanks for all the fish" before departing Earth for a saner world.

Hold on, we're getting an update; that's not what happened at all. Kagan reaffirmed that the science of climate change is no longer in doubt, and noted that the UN's Intergovernmental Panel on Climate Change makes clear that the only way to prevent the very worst effects of global warming is to stop pumping greenhouse gases into the atmosphere. She noted that Congress had indeed authorized the EPA to enforce the Clean Air Act, which directs the agency

to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” [...] Carbon dioxide and other greenhouse gases fit that description. [...] EPA thus serves as the Nation’s “primary regulator of greenhouse gas emissions.”

Noting that coal- and natural-gas-powered generating stations produce about a quarter of US greenhouse emissions, Kagan states that the Clean Power Plan was put in place to fulfill the EPA's regulatory mission, by shifting the US to sources of energy that won't kill us through climate change. The majority decision, she wrote, "strips the Environmental Protection Agency of the power Congress gave it to respond to 'the most pressing environmental challenge of our time.'"

In a scathing conclusion, Kagan wrote that if any part of the federal government is guilty of overreach, it's the majority on the Supreme Court:

Evaluating systems of emission reduction is what EPA does. [...] In rewriting [the Clean Air Act], the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.

The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.

And then all the Republicans in Congress rejoiced and fossil energy stocks kept rising in value . Today is a great day to make money, our children and grandchildren be damned — which this decision seems bent on accomplishing.

In coming days, we'll look at what can be done to offset this awful decision, because even if this lifeboat just sprang a leak, we all need to keep rowing like hell. We can also take heart that coal simply isn't competitive in the long run with cleaner energy sources. But today will likely go down in history as a real setback in the fight to keeping the planet habitable. We can still prevent the very worst, but it's now going to be harder.

Maybe it'll build character.

[ West Virginia et al v. EPA / NYT / Image credits: SCOTUS by Jarek Tuszyński, Creative Commons License 3.0, industrial background by 'Indie_charles,' public domain) ]

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