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The Supreme Court throttles Joe Biden’s climate agenda [1]

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Date: 2022-06-30

A merica’s supreme court is on a roll. After a week in which it scrapped women’s constitutional right to an abortion and gave an expansive interpretation of gun rights, it has issued yet another momentous ruling—one that will have far-reaching consequences for the government’s ability to curb the greenhouse-gas emissions that are heating the planet.

On June 30th, in West Virginia v Environmental Protection Agency, the court sharply limited the epa ’s power to regulate the millions of tonnes of greenhouse gases discharged by coal-burning power plants each year. The Clean Air Act, the majority ruled, does not permit the agency to reshape the power grid by relying more heavily on cleaner sources like solar and wind power.

In his majority opinion, joined by all five of his conservative colleagues, Chief Justice John Roberts described the Clean Power Plan, the Obama-era regulatory regime at issue, as an “unheralded” scheme affecting “a significant portion of the American economy”. Reducing carbon dioxide emissions and forcing “a nationwide transition away from the use of coal to generate electricity”, he wrote, “may be a sensible ‘solution to the crisis of the day”, but “it is not plausible that Congress gave epa the authority to adopt on its own such a regulatory scheme”.

The Clean Air Act may empower the epa to regulate greenhouse-gas emissions, Chief Justice Roberts wrote, but “separation of powers principles and a practical understanding of legislative intent” require “clear congressional authorisation” before systemic regulations affecting the entire power network can be drawn up. The decision did not write off all future alternatives for what the Clean Air Act stipulates as a “best system of emission reduction”. It emphasised that the question in this case is narrower than that: whether the specific rules in Mr Obama’s plan were permissible under the statute. So the ruling may leave President Joe Biden with some latitude to devise new regulations.

Under the court’s ruling, when the epa develops national emissions guidelines for existing power plants it must rely only on technological solutions that can be applied by existing plants, without assuming a fundamental change in their nature. In other words, guidelines must be drafted that allow a coal-fired power plant to remain a coal-fired power plant. In fact, power companies may find that replacing coal with renewables is more economical, as installing renewables becomes increasingly competitive with fossil fuels, and in particular coal.

Justice Elena Kagan’s dissent expressed frustration with the majority’s attitude towards “the most pressing environmental challenge of our time”. She noted, in an overview of the threats posed by climate change, that “if the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.”

She also joined the now familiar battle between liberal and conservative justices over how much trust to vest in federal agencies to issue regulations. Where the majority favours strong judicial oversight of what Justice Neil Gorsuch called “unelected officials”, the dissenters would give regulatory bodies more leeway. “The subject matter of the regulation here”, Justice Kagan wrote, “makes the court’s intervention all the more troubling.” Justices do “not have a clue” about “how to address climate change”, she added. With stakes as high as the future of the planet, Justice Kagan concluded, it was outrageous that the “court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy”.

American fossil-fuel power plants are one of the largest sources of emissions in the country and in the world. They emitted 1.55bn tonnes of carbon dioxide in 2020, more than many high-emitting countries. Coal-fired power plants accounted for half of that.

By ruling in favour of the coal producers, the Supreme Court has restricted Mr Biden’s ability to decarbonise the American power sector, responsible for 25% of the country’s emissions, and the second-largest after transport. According to analysis by the Rhodium Group, a think-tank, federal regulations, including standards for power stations, were one of the few actions which could shave more than 100m tonnes off annual emissions by 2030, making them a crucial element of achieving Mr Biden’s target of reducing emissions to 50-52% below 2005 levels by that year.

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[1] Url: https://www.economist.com/united-states/2022/06/30/the-supreme-court-throttles-joe-bidens-climate-agenda

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