After rendering a decision in favor of the right to carry a weapon outside one’s home and another limiting the right to abortion, the very conservative Supreme Court of the United States looked into the climate. In a judgment rendered Thursday, June 30 in the case between the State of West Virginia and the Environmental Protection Agency (EPA), the highest authority in the country considered that the latter could not enact general rules. to regulate emissions from coal-fired power plants.
In the United States, the energy sector is responsible for 25% of greenhouse gas emissions, according to EPA figures. And for good reason, 20% of electricity still comes from coal-fired power stations, which emit a lot of CO2, the main gas involved in global warming. Franceinfo returns to the stakes of this decision, welcomed by the conservatives and deplored by the defenders of the environment.
What does the Supreme Court say?
In justifying its decision to remove the authority to regulate emissions from the coal sector from the Environmental Protection Agency, the Court, through Judge John Roberts, explained that“it is implausible that Congress gave the EPA the authority to pass such a measure”. According to him, “a decision of such magnitude and consequence is up to Congress itself, or to an agency that acts after receiving clear delegation” from the legislature.
This argument falls within a framework defined by the Supreme Court and called “the major issue doctrine” : according to this principle, the body arrogates to itself the right to reconsider – by majority, of course – on a mission that it considers abusively attributed to a federal agency, summarizes the New York Times*.
In the case of the EPA, the majority of the Court therefore considered that the regulation of greenhouse gas emissions from the coal industry did not fall within the jurisdiction conferred on it by the “Clean Air Act”. This text, which dates from 1970, and which is presented across the Atlantic as “the most powerful environmental law in the world”, has since served as the basis for a host of restrictive and ambitious environmental laws. It was also he who established the role of the EPA, the agency responsible for air quality across the Atlantic. However, four decades later, the Supreme Court finds that this framework does not allow for measures to be taken specifically to combat global warming – a challenge that the legislators of the time did not have in mind at the time of its writing.
However, as Supreme Court Justice Elena Kagan, who voted against the ruling, points out, the Clean Air Act allows the EPA to regulate “pollutants that can be expected to endanger public health and well-being”. “CO2 and other greenhouse gases fit this description,” she underlines in her opinion, quoted by the Washington Post*. The consequence of this decision is that “Whenever an agency does something significant and new, the regulation is presumed invalid, unless Congress has specifically authorized it to regulate that area”summarizes for its part the American public radio NPR *.
What are the consequences for the role of the EPA?
The EPA had not been mandated by the Biden administration to establish new regulations for emissions from coal-fired power plants. This decision, rendered on June 30, is in fact the culmination of a legislative battle started in 2015 against the “Clean Power Act”. This text, carried by the administration of Barack Obama and abandoned in the Trump era, aimed to align the energy policy of the United States with its ambitions to reduce greenhouse gases, by putting the sector on the path to transition from fossil fuels – oil, gas and coal – to renewable and carbon-free energies.
EPA boss Michael Regan said to himself “deeply disappointed” by choice of the Court and promised to use “all powers” of the agency to reduce pollution.
While this decision does not weaken a particular law, it “remove a tool” to the EPA, without confiscating the box, explains on Twitter the specialist in environmental law at Columbia University*, Michael Gerard. “The EPA can still regulate greenhouse gases from motor vehicles”he illustrates, or regulating coal-fired power plants by means other than emissions, by setting limits on other pollutants, for example. “The EPA can still regulate the issue of leaks from oil and gas”, while this decision does not affect the considerable power of states and cities, nor the massive development of renewable energies, he lists.
What effects will this decision have on the fight against greenhouse gas emissions?
This judgment of the Supreme Court actually acts preventively on future texts of the Biden administration in favor of the fight against greenhouse gas emissions. The president also denounced a decision “devastating” and pledged to continue”to use the powers granted to him to protect public health and fight the climate crisis”. However, the Supreme Court “insists that [les] agencies get ‘clear permission from Congress’ but she knows Congress is extremely dysfunctional” notes Richard Lazarus, professor of environmental law at Harvard, quoted by AFP. It therefore opens the way to other potentially paralyzing Supreme Court judgments, given the deadlocks between Republicans and Democrats in the House of Representatives and the Senate.
Jessie Jenkins, an energy scientist who teaches at Princeton University, relativizes, on Twitter*: “Environmental rules do not traditionally lead to major sectoral transformations, buton the other hand, give them a dynamic to take a trajectory and bring clarity that will guide the investments that will serve as the basis for change”. He pursues : “The EPA can do it on greenhouse gas emissions. But it’s up to Congress to pass the laws that will accelerate the transition (…). It was true before and it does. stay after” this decision. Ironically, the emission reduction targets set for 2022 in the Clean Power Act, a law never applied, have thus been largely met. Market forces, not the EPA, sidelined some of the nation’s coal plants, making them less competitive.
Appalled, however, American environmental defense organizations highlighted the gap with the rest of the world. “We can say that this is a setback in our fight against climate change, when we are already very behind in achieving the objectives of the Paris agreement”, worried for his part the secretary general of the UN, Antonio Guterres. “But we must also remember that an emergency of such a global nature as climate change requires a global response, and that the actions of any single nation should not and cannot make or break whether or not we achieve our goals for the climate”.
* Links followed by an asterisk lead to content in English.