Anger, praise, hope on Hill after Supreme Court EPA ruling

Source: By Nick Sobczyk, E&E News • Posted: Monday, July 4, 2022

Climate advocates.

Advocates for action against climate change rallied at the Supreme Court yesterday after its ruling curtailing EPA’s ability to address greenhouse gas emissions. Francis Chung/E&E News/POLITICO

A paralyzed Congress was left with little recourse yesterday after the Supreme Court scaled back EPA’s authority to regulate greenhouse gas emissions from power plants, with climate legislation stalled and lawmakers unlikely to set a new course for the agency in the near future.

But the court’s 6-3 ruling in West Virginia v. EPA could shape Republican oversight efforts if the GOP takes over one or both chambers next year, and it’s prompting Democrats to redouble their efforts to pass their party-line reconciliation bill.

“This decision very clearly sets the parameters, which will have an impact across the board and across regulations,” Senate Environment and Public Works ranking member Shelley Moore Capito (R-W.Va.) said in an interview.

The court ruled along ideological lines that EPA does not have the broad power to force fossil fuel generation off the grid in favor of cleaner energy, as it sought to do with the Obama-era Clean Power Plan.

Democrats, hoping to make good on President Joe Biden’s pledge to decarbonize the power sector by 2035, blasted the decision yesterday — Rep. Alexandria Ocasio-Cortez (D-N.Y.), architect of the Green New Deal, called it “catastrophic.”

But they were also breathing a sigh of relief that the court did not wholly rip up EPA’s greenhouse gas regulatory power.

“It’s less consequential for the Biden administration than it might appear because it focuses on the EPA effort to encourage switching generation sources from coal to gas,” Sen. Sheldon Whitehouse (D-R.I.) said in an interview.

“And (a) we’ve already done that, and (b) when you factor in the methane, that’s not all that great of a swap anyway. So if that was to be the way the Biden administration went about its rule, it wasn’t going to be a very good rule to begin with.”

Still, at a time when the effects of climate change are becoming more visible — and the scientific warnings becoming more dire — the decision leaves Congress and the agencies grappling for answers.

The majority decision from the Republican-appointed members of the court hinged on the major questions doctrine, which dictates that Congress must offer specific instructions on issues, like climate change, that are of “vast economic and political significance.”

The court’s application of the doctrine drew praise from conservative legal circles and Republican lawmakers. But it’s a major concern for Democrats and environmental groups who fear future challenges to regulations that conservative justices consider to be economically and politically important (Greenwire, June 30).

“They’ve left him room to build a pretty forceful rule in this particular matter,” Whitehouse said, referring to President Biden. “I think the danger is the new architecture that they constructed to attack regulatory agencies generally. That is a really, really significant legal change.”

Meanwhile, with a 50-50 Senate and Republicans opposed to most wide-ranging climate policies, Congress is unlikely to offer EPA more specific authority anytime soon.

And Democrats’ efforts to pass roughly $500 billion in clean energy and climate spending via a party-line reconciliation bill remains in limbo amid internal negotiation.

Senate Majority Leader Chuck Schumer (D-N.Y.) has been in talks over the past few weeks with Senate Energy Chair Joe Manchin (D-W.Va.), who roiled his party by announcing his opposition to the original $1.7 trillion “Build Back Better Act” last year.

But what, if any, clean energy provisions make it to a potential final deal is an open question. Manchin has in recent weeks indicated his opposition to incentives for electric vehicles and to a direct pay option for clean energy tax credits.

Manchin, despite his state’s involvement in the case, has not publicly commented on the Supreme Court’s decision. Spokesperson Sam Runyon declined to comment when asked yesterday.

Other Democrats nonetheless said it only heightens the political imperative to get some of that climate spending passed into law.

“That’s the question for 50 senators now,” House Select Committee on the Climate Crisis Chair Kathy Castor (D-Fla.) said in an interview. “We don’t have time anymore.”

‘Don’t give up’

Outside of reconciliation, lawmakers from both parties pledged to continue advancing more moderate varieties of climate policy.

“The Court’s decision confirms Congress, not the EPA, has the authority to create environmental policy,” Senate Energy ranking member John Barrasso (R-Wyo.) said in a statement. “We’ll continue working to protect the environment while making American energy as clean, reliable and affordable as possible.”

Castor, meanwhile, pointed to the bipartisan infrastructure law and annual federal spending bills as areas where Democrats have been able to make progress in reducing emissions.

“EPA still has its authority. They didn’t gut the Clean Air Act entirely,” Castor said. “You just don’t give up in this business.”

But the decision’s major congressional impact may be felt in the form of oversight.

President Biden made clear yesterday that his administration still plans to move forward with a new power plant greenhouse gas rule, with a proposal from EPA expected by March of next year.

“I will take action,” Biden said in a statement (E&E News PM, June 30).

Capito, who led a brief supporting the GOP states in the case, said the decision would help shape oversight of that regulation if Republicans take back the Senate in the midterms.

Congress, she said, has already outlined a legislative path to address climate change with bipartisan emissions reduction provisions in the infrastructure law as well as politics to support carbon capture technology, like the 45Q tax credit.

“We’re going to monitor closely what the EPA is doing going forward and making sure that they’re adhering to the court’s decision,” Capito said in an interview.

Whitehouse said EPA could take an “inside the fenceline” approach that mandates carbon capture for fossil fuel-generated power.

“The easiest path forward is to remove the damn stuff,” Whitehouse said.

As Natural Resources Defense Council President Manish Bapna put it, the ruling “leaves the EPA in the climate fight but makes it harder to win it.”

“Under the Court’s decision, the EPA can still write standards that require these plants to operate more cleanly,” Bapna said in a statement. “The agency can and must set standards to cut carbon pollution from power plants that burn coal or gas.”

This story also appears in Climatewire.