West Virginia Solicitor General Lindsay See goes before the United States Supreme Court this morning to make arguments in a case that has deviled the coal industry, power companies, the Environmental Protection Agency, activists and federal regulators for nearly a decade:
How far does the authority of the EPA extend in attempts to limit carbon emissions from coal-burning power plants to try to mitigate climate change?
President Biden’s plans to combat climate change, the future of coal as a primary source of electricity, as well as the economic impact on coal producing states like West Virginia all hang in the balance.
See will argue that the EPA, first under the Obama administration, has wildly exceeded its authority. According to the filing by West Virginia Attorney General Patrick Morrisey’s office, the agency has taken one small section of the Clean Air Act and attempts to use it to “issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy.”
The argument suggests the power for such sweeping regulations rests only with Congress. If lawmakers do not make the specific intent clear in legislation, then a federal agency cannot act unilaterally.
“We have a federal government that wants to cut emissions by half by 2030, and they’re going to be very aggressive in the issuance of those rules,” Morrisey was quoted as saying in the Washington Post. “The damage would be done if the rulemaking would continue unabated. It has to be addressed right now.”
Environmental advocates strongly disagree. Rachel Cleetus, policy director for the Climate and Energy program at the Union of Concerned Scientists, writes in Scientific American that the EPA must act to limit climate change.
“EPA regulations are needed to cut carbon dioxide emissions from the power, transportation and other industrial sectors, as well as methane emissions, which in large part come from the oil and gas sector,” she said. “A ruling against the EPA could also limit its ability to factor in the latest climate science as it makes decisions about strengthening future standards.”
Of course the EPA can act, but only if it has the jurisdictional authority given by the elected representatives of the people. A previous Supreme Court ruled 5-4 in 2016 blocking the Obama Administration’s Clean Power Plan from going into effect.
The court has become more conservative since then with the appointment of three justice by Donald Trump. Court observers believe it is likely Morrisey will win the day.
“With the court’s conservative justices increasingly suspicious that agencies are overstepping their powers, the case’s outcome could not only reshape U.S. environmental policy, but also call into question the authority of regulators to tackle the nation’s most pressing problems,” according to the Washington Post.
Notably, carbon emissions from coal-fired power plants are down even without the Clean Power Plan because of closures. The Post reports that according to the Sierra Club at least 240 coal plants have been retired since 2012.
The country’s transition away from carbon-based fuels, especially coal, is happening naturally because of market conditions and public pressure. The EPA’s overreach, whether during the Obama years or in the future, is an abuse of federal power, and an unnecessary one given how the nation’s energy sector is already responding to climate change.