West Virginia v. EPA or Not, the Climate Action Horses Have Left the Barn

The far-right conservative majority on the U.S. Supreme Court handed a major victory to domestic fossil energy interests this week, when it ruled that the U.S. Environmental Protection Agency (EPA) is severely limited from regulating greenhouse gas emissions under the 1970 Clean Air Act.

Coal, oil and gas fans may want to keep that bubbly on ice, though. Utilities are already under enormous pressure to decarbonize from elsewhere across the U.S. business community, and leading global stakeholders in the renewable energy field are already pouncing on the opportunity to crack the U.S. market wide open.

Elections have consequences: all six conservative justices were appointed by GOP presidents

To be clear, the 6-3 conservative majority decision in West Virginia v. EPA is potentially devastating. The ripple effect could spin out to other federal agencies and limit their ability to make rules on leading issues without specific direction from Congress.

In effect, Congress would have to take upon itself the expertise and professional networking that goes into agency rule-making on major issues. The result would not simply be more gridlock, but a permanent deep freeze on meaningful action by federal agencies. 

“That’s one reason why this case might have very far reaching consequences,” legal scholar Shaun A. Goho told Harvard Law Today back in February.

“The Court has not been clear about how to draw the line between major questions and non-major questions — about when policy questions are just too big to be decided by agencies, and must instead be answered by Congress,” added Goho, who is a lecturer on law and deputy director and senior staff attorney of Harvard Law School’s Emmett Environmental Law and Policy Clinic.

Responding to the West Virginia decision on Twitter on Thursday, Harvard Law professor Jody Freeman agreed, noting that the “Court's embrace of Major Questions Doctrine ominous for administrative state more broadly.”

Conservative U.S. Supremes clap back at the EPA and a Clean Power Plan that doesn’t exist

Freeman did note that the EPA can still regulate greenhouse gas emissions and make other rules under the Clean Air Act. However, the SCOTUS decision prevents the EPA from requiring power plants to reduce their emissions by shifting into cleaner fuels. This “generation shifting” element was the heart of the Obama-era Clean Power Plan.

As for why the Supreme Court chose to revisit an Obama-era policy this late in the day, that’s a good question. After the EPA proposed the Clean Power Plan in 2015, power companies, other fossil energy stakeholders and their Republican allies in state governments, including West Virginia, immediately took the EPA to court. For all the noise, the Clean Power plan was never implemented.

During the Trump administration, the EPA dropped the Clean Power Plan and proposed a much less ambitious approach called the Affordable Clean Energy rule. That, too, was dead on arrival in the courts. This time the opponents were mainly on the Democratic and renewable energy side, including a number of utilities. 

When President Joe Biden took office last year, his administration apparently thought the issue was moot because the Clean Power Plan did not exist anymore. 

That’s not what the Justices thought. Last fall the court agreed to hear West Virginia v. EPA along with three related cases, North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA and North Dakota v. EPA.

It's déjà vu all over again for the Clean Power Plan

The Biden administration has apparently been holding back on plans to propose its own rule, in order to craft a new plan that would be consistent with the West Virginia decision.

In the meantime, rule or no rule, it’s likely that history will repeat itself. Even though the Clean Power Plan never left the drawing board, after 2015 many power companies and other stakeholders saw the writing on the wall and began to plan ahead for generation shifting as the leading pathway to decarbonization.

In addition, hundreds of cities and a number of states adopted climate plans aimed at shifting into clean power. Business leaders also began to stir the renewable energy pot, recognizing that their ability to compete both domestically and globally was at stake.

As a result, the U.S. renewable energy industry has grown exponentially in just the past seven years. On June 30, PV Magazine noted that a full 3.1 million jobs in the U.S. energy sector are now “dedicated to net-zero technologies,” out of a total of 7.8 million energy jobs.

On June 30, RMI (formerly the Rocky Mountain Institute) also noted that several states have been exercising an outsized influence on climate action in the U.S., regardless of the vacuum in EPA policy making.

The organization’s first-ever list of “front runner” states on climate action describes Colorado, California, Illinois, New Jersey, New York and Washington State as “the largest front-runner states due to their large populations and emissions footprints.”

“These states are a big deal when it comes to climate action,” RMI explained. “Together, they represent about one-fifth of the United States’ 2021 emissions. If these six states can get on track to cut emissions in half by 2030, they would reduce 2030 emissions by close to 200 million tons of carbon dioxide equivalent on their own.”

Business leaders help set the stage for the next Clean Power Plan

If and when the EPA formulates a new decarbonization plan for power plants under the Biden administration, it will already have a running start thanks in part to the efforts of business leaders in support of renewable energy.

Influential business-led efforts have been up and running all through the Trump administration. Despite the former President’s now-notorious plan to stay in power after the 2020 election, the business community received renewed support for climate action after Biden took office.

In March, the revival of public-private collaboration on decarbonization took the form of the U.S. Department of Energy’s new “Better Climate Challenge,” which coordinates decarbonization among 90 leading businesses, academic institutions, local governments and other civic entities, in order to achieve maximum effect.

Among the private sector participants at launch were 3M, Cummins, Honeywell, Ikea, Kohl’s, Nestlé, Stanley Black & Decker, Whirlpool, Xerox and many others, along with Ford, General Motors, Harley, Nissan, Toyota and Volvo.

The initiative sets next-level climate goals. It asks the participants — including a number of top global firms — to lead by example and cut their carbon emissions by 50 percent by 2030, without the use of carbon offsets. 

If that sounds like some measure of generation shifting will be involved, it most certainly will, and leading global firms will be front and center in that effort.

There is already a considerable international footprint in the U.S. offshore wind industry, and the U.S. solar industry has also attracted attention.

To cite just one example, Shell recently acquired a major stake in the solar developer Silicon Ranch. Shell is also seeking opportunities in the emerging green hydrogen field, as is Mitsubishi.

Make no mistake: the six Republican-appointed Justices on the Supreme Court will cause more chaos and do more damage to American democracy — and the economy — before they are stopped, as demonstrated by their misbegotten decision to overturn Roe v. Wade. Nevertheless, the decarbonization movement is one area in which their attempt to flex power without principle is doomed to fail. 

Image credit: Jen Theodore via Unsplash