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The Supreme Court’s EPA ruling isn’t the only legal attack on the environment

West Virginia v. EPA is part of a bigger legal crusade to destroy environmental protections.

The Supreme Court building is pictured through a gap in the leaves of nearby trees
The Supreme Court in June. On Thursday, the Court ruled that the EPA does not have the power to regulate carbon dioxide emissions from power plants.
Mandel Ngan/AFP via Getty Images

The Supreme Court on Thursday handed down a decision that says the Environmental Protection Agency does not have the power to regulate carbon dioxide emissions from power plants without authorization from Congress, drastically limiting the policy tools the EPA can use to address climate change.

The vote in the West Virginia v. EPA decision on Thursday was 6-3, with the Court’s three liberal members dissenting. In the majority opinion, Chief Justice John Roberts wrote that the EPA “must point to ‘clear congressional authorization’ for the power it claims.” He added, “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.”

This ruling has implications not just for the government’s ability to protect the environment but also for how much federal agencies can impose regulations at all.

“This court in one term has basically dismantled the administrative state,” Rebecca Bratspies, a law professor at the City University of New York who studies environmental justice, said in an email.

The West Virginia case was always a bit bizarre. It centers on President Obama’s Clean Power Plan, which aimed to cut greenhouse gas emissions from power plants, the second-largest source of carbon dioxide in the US. But the policy was replaced before it was implemented, and then its replacement was blocked by a federal appeals court. Meanwhile, there were questions about whether the Supreme Court even had jurisdiction to hear the case. As Vox’s Ian Millhiser described it, West Virginia v. EPA is “a case about an environmental regulation that no longer exists, that never took effect, and that would not have accomplished very much if it had taken effect.”

But the decision means that agencies like the EPA can’t create regulations that have expansive social and economic impacts on their own, despite decades of precedent doing exactly that. Such rules would now require Congress to specifically create laws to implement them, and given the difficulty of passing any federal legislation, it would drastically impair the EPA’s ability to regulate the pollution that’s heating up the planet.

“Whatever else this court may know about, it does not have a clue about how to address climate change,” wrote Justice Elena Kagan in her dissent. “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.”

The West Virginia v. EPA decision is just the latest in a series of recent lawsuits and rulings that are eroding protection for air, water, and the climate. And they’re part of an even broader conservative-led effort to weaken the government’s ability to regulate anything.

“I do think that the West Virginia case can be seen as part of a larger trend directed at restricting the ability of EPA and other agencies to protect health, safety, and the environment,” said William Boyd, an environmental law professor at the University of California Los Angeles. “This starts at the top with the Supreme Court, but it will ripple through the federal judiciary as decisions accumulate and the jurisprudence that has taken over the last half century to accommodate the regulatory state is diminished and hollowed out.”

Many of these other cases are still underway, but depending on how they’re decided, they could further erode the government’s tools for addressing the most urgent environmental problems. But there are other ways to address environmental issues that remain intact, for now.

The West Virginia v. EPA decision joins a growing list of recent legal environmental attacks

Under President Trump, the EPA launched a campaign to undo or undermine a long list of environmental regulations. In many cases, those actions were blocked by courts, including Trump’s replacement for the Clean Power Plan at the center of the West Virginia v. EPA case.

But Trump managed to appoint more than 200 federal judges, including three Supreme Court justices, and the consequences are becoming apparent. With more favorable judges, some Republican state governments have seized the opportunity to challenge environmental laws.

Here are some of the recent legal challenges to the government’s ability to protect the environment:

  • Republican attorneys general in 17 states sued the EPA in a bid to end California’s waiver to the Clean Air Act, a law first enacted by Congress in 1963 that allows the state to set its own stringent emissions standards for cars and trucks. Transportation is the largest source of greenhouse gases in the US, and California’s status as the most populous state and largest auto market makes it a de facto nationwide emissions policymaker.
  • Fourteen states sued the Biden administration in March to end a pause on new oil and gas leasing on federal lands, a core part of the president’s climate agenda that would keep those fossil fuels in the ground.
  • The fossil fuel industry, right-wing groups, and Republican lawmakers are trying to block a new Securities and Exchange Commission rule that requires publicly traded corporations to disclose climate risks, which would give investors more insight into how climate change and extreme weather will affect a business in the short and medium term.
  • In October, the Supreme Court will hear oral arguments in a case that will decide whether wetlands are classified as “waters of the United States” that are regulated under the Clean Water Act. The ruling could have major ramifications for how the EPA and the US Army Corps of Engineers regulate pollution in American waterways.

These decisions stand to have negative impacts on the lives of Americans. That includes everything from more hospitalizations and deaths caused by air pollution to billions of dollars’ worth of damages linked to extreme weather that US homes and infrastructure are not prepared for.

There are still other ways to advance environmental protections

Not every recent ruling has undermined environmental laws. In May, the Supreme Court upheld using the social cost of carbon as a basis for regulations on climate change. The social cost of carbon puts a dollar amount on the amount of damage to society that occurs from emitting one ton of carbon dioxide.

And while the Supreme Court nerfed the EPA’s sharpest tools for cutting emissions, it left the agency’s core authority to regulate greenhouse gas emissions intact. The 2007 Massachusetts v. Environmental Protection Agency Supreme Court ruling still holds that the EPA must come up with rules to reduce carbon dioxide and methane pollution.

But rather than counting on the goodwill of judges going forward, there are other levers the Biden administration can pull to advance its environmental agenda.

For example, under the Toxic Substances Control Act of 1976 and its 2016 update, the Lautenberg Chemical Safety Act, the EPA can evaluate and regulate both new and existing chemicals that can be risks to human health and the environment. Since warming from greenhouse gases threatens health, this could be a potential tool to limit carbon dioxide.

Alternatively, through a bit of clever legal maneuvering, the EPA could (theoretically) lean on another provision in the Clean Air Act to keep greenhouse gases in check. As the Brookings Institution explained in 2016, Section 115 of the Clean Air Act compels the EPA to watch for instances where pollution from the United States may “endanger” the citizens of other countries. If those countries, in turn, take steps to ensure their emissions don’t harm the United States, the EPA must inform the governors of the American states where those emissions originated so that they can take steps to bring those emissions down.

Legal scholars argue that since greenhouse gases contribute to the global problem of climate change, Section 115 gives the EPA broad authority to regulate those gases. Instead of the EPA making sector-wide regulations, which the Supreme Court’s ruling invalidates, Section 115 works within the framework of State Implementation Plans, which are developed by states and aren’t subjected to congressional oversight.

The Biden administration can also work with states to develop state-level environmental policies that, when put together, could have a similar effect to federal regulation from the EPA. Some states could become de facto rule-setters for industries with a large presence within their borders, similar to how California regulates vehicle emissions. But that process would be time-consuming, and the administration will no doubt find it difficult to get buy-in from states controlled by Republican legislators who deny the realities of climate change.

The White House is also using executive orders to advance climate policies. Earlier this month, President Biden announced he would use the Defense Production Act to build clean energy technologies, including solar panels and heat pumps. He’s also signed executive orders to protect forests, to procure zero-emissions energy and vehicles, and to make climate change a priority in foreign policy. The downside of executive orders is that the next president could undo them.

Outside of the federal government, states also have the power to enact their own environmental policies, like renewable energy portfolio standards or trading greenhouse gas emissions credits.

But diminishing the EPA’s authority to regulate emissions from power plants is still a blow to US climate change ambitions, leaving fewer options to deal with a mounting crisis as the window to act slams shut.

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