In a decision that has had climate activists holding their breath for months, the U.S. Supreme Court ruled that the U.S. Environmental Protection Agency does not have the authority to regulate planet-warming greenhouse gas emissions from power plants. While that Obama-era rule had not yet gone into effect, experts say the decision draws a line in the sand on the ability of federal agencies to address climate change that will hamstring efforts to avoid catastrophic impacts.
The case, West Virginia v. EPA, represents the most significant ruling on climate change in more than a decade. Brought by nearly 20 states including Wyoming and West Virginia, the nation’s two largest coal producers, it questioned whether, in a provision of the Clean Air Act, Congress meant for the EPA to be able “to issue significant rules capable of reshaping the nation’s electricity grids.”
In a 6-3 vote postponed until the end of its 2021-2022 term, the Supreme Court majority determined that it did not. This means that states will not be required to shift some of their coal and gas-fired operations to renewable energy sources, as the Obama administration’s Clean Power Plan concluded was the best system to reduce harmful emissions. The Trump administration substituted a more lenient rule that also never went into effect. The Biden administration had not yet submitted its version and had asked the Supreme Court not to intervene.
Environmentalists worry the case will trigger other rulings that may further handcuff agencies from relying on science to make decisions on complex issues like climate change that are far beyond the expertise of Congress.
“The case is, without question, a big setback and a big disappointment for us,” Andres Restrepo, senior attorney for the Sierra Club, one of the respondents, and their lead counsel in this litigation, told The Arizona Republic. “The court’s decision effectively took off the table the most effective and important tool that EPA had previously had to limit greenhouse gas emissions from existing coal and gas-fired power plants.”
Although Arizona’s last coal mine closed in 2019, electric utilities in the state still co-own coal plants in Colorado and New Mexico and import coal from other states to burn in Arizona generating stations. Experts worry Thursday’s result may stunt Arizona’s progress on taking full advantage of local opportunities to expand solar energy. In 2021, 43% of Arizona’s energy came from natural gas, 13% from coal and 9% from solar.
“This decision, it’s certainly not going to stop anyone from installing solar,” Restrepo said. “But it’s going to put less pressure on the (energy) industry to move towards solar at a time when we need as swift of a transition towards renewables as possible.”
The ruling comes just three months after an international team of top scientists released their latest conclusions, five years in the making, on the upcoming impacts of climate change and what must be done immediately to mitigate them. The 3,600-page report laid out a tumultuous and expensive future of worsening heat and drought, intensifying storms and flooding, more frequent wildfires and pandemics and ongoing crop and supply chain failures.
These threats will be felt most by disadvantaged and Indigenous populations who may be least able to prepare or cope, and who contribute relatively little to the emission of carbon dioxide and methane gases known to be causing climate change.
The April report from the Intergovernmental Panel on Climate Change warned that, with global emissions still on the rise, we are not on track to meet the panel’s 2018 goal of keeping average warming under 1.5 degrees Celsius (2.7 degrees Fahrenheit). But, the authors also offered hope. Every fraction of a degree of additional warming avoided will equate to a more livable climate for future generations.
The way to accomplish this, the scientists say, is by phasing out fossil fuels, transitioning to renewable energy and electric appliances, cutting and capturing carbon emissions from other sectors like agriculture and electing leaders who will push for these changes.
With the U.S. cost of solar, wind and battery storage down by as much as 85% since 2010, this clear call to action further galvanized business and energy leaders to help install and incentivize renewables. To many, Thursday’s ruling represents a jolting halt to that momentum and a misguided dismissal of advice from our nation’s experts.
“The whole point of the constitutional delegation of power to agencies was so agencies could write their own rules,” said Stefanie Lindquist, a Constitution expert and professor of law at Arizona State University. “And you make that delegation because you realize that Congress doesn’t always have the detailed expertise to understand what needs to be done. Agencies developed because we had an industrial revolution and pollution and people died.”
In addition to being anti-science, some view the court’s decision as running counter to the democratic intent of the Constitution. Giving rule-making authority to elected members of Congress was designed to make sure regulations reflect the will of the people rather than that of non-elected agency officials, Lindquist said.
However, a repeated survey by the Yale Program on Climate Change Communication found that the percentage of Americans who are “alarmed” by climate change increased from 18% to 33% between 2017 and 2021, with another 25% now feeling “concerned.”
“The public polling just keeps showing increased majorities that want to do something about this problem, and I think that’s a reflection of (drought at) Lake Mead and Lake Powell and people seeing the damages,” said Kevin Gurney, one of the authors of the IPCC report and a professor at Northern Arizona University. “So people finally wanted to take on the problem. And this limits what we can do and really puts a dent in the psychic momentum that was building. This court ruling, it’s just like in a different universe. It’s so incoherent.”
In the modern universe, there is abundant data and a strong scientific consensus that the concentration of greenhouse gases in the Earth’s atmosphere is increasing, mostly from burning fossil fuels, and that these heat-retaining gases disrupt the weather systems around which we have built human civilization. When the Constitution was ratified in 1788, few could have imagined the climatic shifts documented since.
“Remember, the (Founding Fathers) were farmers or in the mercantile class,” Lindquist said. “I don’t think they even could have contemplated the complexity of these issues today. They were smart people, but the combustion engine was a pretty long distance in the future.”
Of course, Thursday’s decision only affects domestic regulatory action on a problem that is global. But many feel the U.S. has an obligation to lead. While emissions in countries like China have been rising faster in recent years, the United States has historically topped the list of all-time emitters, especially at a per capita rate.
“Globally, everyone has been waiting on the U.S. We’re just such an important country internationally. Traditionally, we were a leader in this space and we’re not any longer,” Gurney said. “This is just one more example to the world of how we’re limited in our ability to play a role and it has global repercussions. We’re in crisis mode and we don’t have the luxury of legal nuance and we need the courts to understand that.”
State-led solar solutions
At the state level, progress may be less bound by legal nuance. In April, experts at Arizona State University’s inaugural conference on “Democracy and Climate Change” considered the question of whether the U.S. constitutional system hinders climate change solutions. They concluded that there is often more flexibility and opportunity to act quickly via amendments to state constitutions.
Thursday’s ruling does not prevent Congress from later voting to authorize the EPA to regulate greenhouse gas emissions from power plants. But in the current political climate, Lindquist views the chances of that happening as “slim to none.” However, state constitutions, she says, “get amended all the time.”
Arizona ranks second in the nation for solar energy potential after Nevada, according to the U.S. Energy Information Administration, but it was fifth in solar net generation in 2021. Support for solar has increased in Arizona in recent years, but fossil fuel use has also been on the rise. Between 2016 and 2020, natural gas consumption in Arizona rose by more than 30%.
“The way the sun shines in Arizona is very well tailored to solar energy,” Restrepo said. “As I understand it, the state does have a decent amount of solar, but not nearly as much as it could or should have. Looking at most recent numbers, it has about seven times less installed capacity than you’d see in Texas. Texas is certainly a bigger state, but Arizona really has a more concentrated solar resource.”
In response to a request for comment on the Supreme Court decision, the Arizona Department of Environmental Quality highlighted the progress Arizona has already made independent of federal regulations on reducing carbon dioxide emissions, which it says dropped 30% between 2011 and 2020.
ADEQ does not anticipate the ruling to have much local impact on the transition to renewable energy. Rather, the agency expressed concern that future rule-making by the EPA “might constrain or impede Arizona utilities’ progress and voluntary goals.” ADEQ would prefer to let industry regulate itself and respond to market demand.
“Arizona’s policy strategies revolve around encouraging and supporting private sector innovation. We are partnering with industry and growing a strong portfolio in the two largest sources of CO2, energy and transportation,” read an emailed statement from ADEQ.
In 2006, Arizona adopted a renewable energy standard requiring regulated electric utilities to source 15% of electricity for resale from renewables by 2025. And in 2020, the state’s largest utility said it aims to produce 100% carbon-free energy by 2050. But in early 2022, the Arizona Corporation Commission dismissed a 100% clean energy plan.
Arizona is missing from the list of states that have adopted specific greenhouse gas emissions target amounts and dates. It is also absent from the list of states that contributed data to the EPA’s recent official greenhouse gas inventory. And a 2010 law preventing state agencies from even monitoring emissions is still on the books, leaving many Arizonans feeling the state could do more.
“We really don’t have statewide plans relative to climate and climate resiliency,” said Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, in an earlier interview. “Instead, what we have is a provision in our statutes that prohibits the department of environmental quality from doing anything to limit greenhouse gas emissions unless the legislature specifically authorizes it, which they’re not doing.”
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