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US Supreme Court fiddles with climate regulation powers while ignoring promotion of renewables and g

By John Mathews


On June 30 the US Supreme Court made a decision which has been widely lamented as making it much harder for the U.S. government to respond to climate change. In a 6-3 decision in the case of West Virginia v. EPA, the Court ruled that the EPA would be allowed to continue to issue regulations on limiting carbon emissions from individual power stations, but that it would not be allowed to regulate emissions more broadly. Such more sweeping emissions regulation would need to be exercised by the Congress, under what the Court is calling the ”major questions” doctrine – meaning that where controls carry vast and sweeping powers across entire industries, the Congress may not delegate authority to agencies like the EPA, but must confront the issues directly itself.


On the face of it, nobody would want to quarrel with that, Except that the June 30 decision has been widely criticised by liberal online media outlets like Huffington Post. Supreme Court Sharply Limits Regulation Of Carbon Emissions | HuffPost Latest News The Murdoch press news.com.au viewed the decision in similarly bleak terms, stating: “US President Joe Biden has been dealt a blow to his domestic climate agenda after the Supreme Court voted to limit the power of the Environmental Protection Agency to control fossil fuel power plant emissions. The decision places a roadblock to President Biden’s aim of decarbonising the power sector by 2035 – which he hoped to use the EPA to achieve without needing congressional support. US Supreme Court restricts EPA’s powers to control fossil fuel power plant emissions | news.com.au — Australia’s leading news site There are many other negative comments jostling for space in online forums.


And the preeminent science journal Nature carries an authoritative article reviewing the decision, at: US Supreme Court hobbles the EPA’s authority over climate emissions (nature.com).


Criticism focuses on the point that the decision strikes down any regulations the Biden administration might consider issuing under provisions of the Clean Air Act to limit carbon emissions at power plants. The court ruled that EPA regulations aimed at reducing carbon emissions under a specific provision of the 1970 Clean Air Act are not permissible because Congress did not specifically authorize the EPA to regulate CO2. According to the court, the EPA has the authority to regulate emissions from individual plans, but not to make more sweeping efforts to regulate carbon emissions – that has to come from Congress.


The minority dissent, written by Supreme Court Justice Elena Kagan and supported by fellow justices Stephen Breyer and Sonia Sotomayor, called the court’s decision “all the more troubling” given the subject matter.

“Whatever else this Court may know about, it does not have a clue about how to address climate change,” Kagan wrote. “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.”

Kagan also called out the court for essentially designating itself as the rule-maker on those policies.



JM comment

While there is some logic in the Court’s decision, in that Congress might wish to preserve for itself the power to regulate carbon emissions and not subcontract such regulation to an agency like the EPA (a situation that arose only because there was a conservative majority in Congress opposed to any limitations on carbon emissions), the decision undeniably curbs the powers of the EPA to issue broad carbon emission limits and in this way limits the tools available to the Biden Administration. But it is also important to note that this decision only addresses negative restrictions but leaves wide open the option to pursue positive actions promoting green alternatives such as green hydrogen.


The issue being addressed is this: how are high carbon emissions from US electric power plants to be reduced in the most effective manner and alternatives to be promoted? Under Conservative US administrations, the EPA sought to broaden its powers by issuing sweeping regulations across carbon emissions generally, and not just at individual power plant levels. But this approach ignores concern over what should replace coal fired power stations (with the same problem rearing itself in Australia). The smart approach is to cut quickly to decarbonization via raising the level of renewables, by modernising the grid so as to accept higher levels of renewables, and promoting the use of green hydrogen (generated from renewables via electrolysis) in heavy industry such as through promoting green steel, green aluminium, green cement, green glass, green fertilisers (green ammonia) and green chemicals generally.


These positive and industrially constructive approaches to decarbonization, which would work in the US just as much as in Australia and around the world, are what is missing in approaches that are wedded to regulatory concerns over reducing carbon emissions rather than promoting a green industrial revolution based on green hydrogen. This alternative is a positive approach, promoting new green industries as much as restricting extant fossil fuelled industries, that promises to accelerate decarbonization. The Supreme Court justices can play all the games they like with the EPA and its powers, but these decisions do not impinge on the power of the Biden Administration to issue positive reinforcement of the green industrial revolution that is underway through direct promotion of green hydrogen and renewables.


Such positive reinforcement actions could include creation of a federal green bank to accelerate green financing towards green hydrogen and renewables projects; expansion of procurement powers on the part of the military and state governments as well as the federal government in purchasing green power and in setting up fleets of electric vehicles; and creation of a green infrastructure fund to drive investment in infrastructure such as electric vehicle and fuel cell vehicle charging stations. None of these potential steps that would have such dramatic impact when used in the US (and a similar impact when used around the world) are limited by the Supreme Court decision.

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