What the Supreme Court Left Standing

No, the Court didn’t eliminate EPA’s ability to fight climate change.

The Supreme Court’s ruling in the West Virginia case left many people with the impression that it eliminated the government’s power to regulate carbon emissions. There are quite a number of areas of climate law that the Supreme Court has left untouched.

Here’s the EPA authority the Court hasn’t touched:

EPA’s jurisdiction over greenhouse gases.  There was some worry that the Court might overrule Massachusetts v. EPA, which gave EPA authority to regulate greenhouses gases. A few Justices have raised that issue in the past, but they now seem to have given up. And notably, the fact that the West Virginia case was about climate regulation was NOT among the reasons for invoking the dreaded “Major Questions Doctrine.”

The endangerment finding.  In order to regulate greenhouse gases (GHGs), EPA first had to make an official finding that their emissions threaten public health and welfare. The Supreme Court declined to review this issue at the same time it agreed to review another part of the same package of rules.

Carbon emissions standards for new vehicles. The Supreme Court declined to review this at the same time it agreed to review another part of the same package of rules. Transportation is now the biggest source of carbon emissions, so this is a really important field of regulations.

Permit requirements for new plants.  Under are what are called the PSD rules (don’t ask!), EPA gets to review permits for major new sources of emissions. The Supreme upheld the inclusion of greenhouse gases in these reviews, though it said that GHG emissions weren’t an independent ground for requiring a permit.

EPA authority to regulate power plant emissions.  Yes, the Supreme Court did strike down Obama’s Clean Power Plan. But it didn’t question EPA’s authority to tackle the problem, and it left other tools on the table.

In addition, there are two other areas of climate law not involving EPA, where the lower courts have decided multiple cases without any interference from the Supreme Court:

Environmental Impact Statements.  Lower courts have consistently held that environmental impact statements have to consider the carbon emissions that would result from a decision like issuing new coal or oil leases on federal land, setting fuel efficiency standards, or authorizing new gas pipelines. So far, the Justices have shown zero interest in reviewing these.

Endangered Species.  Lower courts have upheld decisions to classify species as endangered or threatened due to climate change. Again, zero interest from the Justices.

In short, federal climate law seems to be alive and reasonably healthy.  Rumors of its death were greatly exaggerated.



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Reader Comments

One Reply to “What the Supreme Court Left Standing”

  1. The reality is that the economics of continuing to operate coal fired power plants has, and will continue to be, the reason they will all close. The inefficiency of coal plants, the high maintenance costs, the required 24/7/365 operations, the massive waste issues all support their demise. The plant sites are their most valuable remaining feature.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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