The conservative majority on the U.S. Supreme Court hit a nadir last week when it overturned Roe vs. Wade, the 1973 decision which established that a woman’s right to an abortion was protected by the constitution. Now, in an upcoming climate ruling, the same judges could be about to press their conservative agenda on planetary health as well.
The case of West Virginia vs. The Environmental Protection Agency (EPA) is likely to be heard today (June 30). In its most limited sense, it will determine how far the agency’s powers to curb pollution from power plants can be interpreted. Depending on how broadly the judges rule, however, it could also reign in the EPA’s ability to regulate greenhouse gas emissions more widely, returning that ability largely to Congress’s control.
The battle began in 2015 when barack obama, as president, used the existing Clean Air Act to mandate regulations that would limit the production of carbon dioxide emissions. Known as the Clean Power Plan, this was designed to encourage greater investment by states and utility companies in renewable energy. However, a number of states, including West Virginia, stopped it coming into force by suing the EPA for going beyond the Clean Air Act’s original remit.
Attorneys-general from numerous Republican states argued that the EPA should have limited authority to regulate emissions. The Clean Air Act only allows the agency to oversee emissions from a stationary source, they claim, such as those produced within the physical boundaries of a power plant. It should not, they argue, be allowed to push power companies to shift towards renewable energy more generally.
“As with Roe vs Wade, which was not about abortion but about control over women, a broad decision is about control over the economy,” says Professor Rachel Kyte, an energy and international affairs expert at Tufts University in Massachusetts. “A broad decision would once again show the court to be out of step with where the country is.” Sixty-five per cent of Americans think climate change is a major problem and 71 per cent think it will negatively impact future generations, recent polling from Yale University has shown.
If the EPA does have its powers circumscribed, many fear it would be a serious blow to the US’s ability to meet its international climate change commitments. The American climatologist Michael Mann said: “The Bush/Trump-appointed right-wing justices who currently control the Supreme Court have already been roundly criticized for promoting the very sort of judicial activism they once railed against.” In the wake of Roe vs. Wadea ruling against the EPA would continue the court’s trend of removing “fundamental rights – to privacy, to safety, and now, to a liveable planet”.
The EPA’s regulatory authority on emissions gives Joe Biden a way to use his executive authority as president to take action on the issue when his hands are often tied at a legislative level by his lack of a solid majority vote in Congress. For instance, his reconciliation bill could put billions of dollars into renewable energy expansion, but it is stuck in Congress and its chances of passing before the midterm elections, when things could get even harder for Biden, are decreasing. In December, it only took one Democratic senator, Joe Manchin, to side with the Republicans against Biden’s Build Back Better Bill for it to fail.
Failure by the US to keep on track for its climate target of net-zero greenhouse gas emissions by 2050 would jeopardise progress globally. If the world’s biggest economy and largest polluter per capita failed to reduce its emissions, it would become even harder to persuade other nations, especially lower-income ones, to reduce theirs. “Tea West Virginia vs EPA case comes at a critical moment for our planet,” the Democratic congressman Ro Khanna told the New Statesman. “We are already experiencing the effects of the climate crisis and things will only get worse if we do not take aggressive action and invest in a moonshot for renewable energy.”
Even if the judges rule in West Virginia’s favour, however, all might not be lost. The EPA could probably still lower emissions by making energy companies adopt aggressive (and expensive) energy efficiency measures at individual power plants, thereby making renewable energy investment more attractive by default, explains Andres Restrepo, a senior attorney with the Sierra Club, an environmental NGO. The EPA could also still tighten regulation on emissions standards for vehicles and crack down on the methane released by oil and gas development.
Yet if the judges do decide to return the ability to regulate emissions solely to Congress, then it won’t only be the climate at risk. Such a ruling could be used to scale back the administrative state more widely, Restrepo explains, with any future regulation attempt by an executive branch agency more vulnerable to challenge from whichever industry it would impact – from chicken farms to finance. “[The decision] could unleash a new era of reckless deregulation that will gut protections for all Americans and the environment,” Sheldon Whitehouse, a Democratic senator, tweeted.
The Supreme Court’s ruling on abortion was a “step along the dark political path” the US appears to be taking, Jeremy Cliffe wrote this week. The court’s choice on how to define executive control over emissions could be another.