Does EPA has right to regulate ‘greenhouse gases’

The U.S. Supreme Court is investigating whether the Environmental Agency EPA has the right to regulate greenhouse gases.

The Environmental Agency EPA appears to want to single-handedly determine how a coal-fired power plant works, Attorney Jacob Roth said in a U.S. Supreme Court hearing on EPA’s right to curb greenhouse gas emissions last Monday. According to Roth, the EPA is trying to determine “how we generate electricity here in the United States”.

With the hearing, on the day the United Nations climate panel warned that the effects of climate change are even worse than expected, the judges are trying to get more clarity on a case known as ‘West Virginia vs. EPA ‘ that has been dragging on since 2016.

The American coal industry and nearly twenty conservative states at the time wanted to know from the Supreme Court whether the EPA went beyond its limits. In the run-up to the major climate summit in Paris in 2015, Obama had presented the Clean Power Plan, an ambitious plan that would significantly reduce greenhouse gas emissions, especially through strict rules for coal-fired power plants.

Obama had given the Environment Agency an important role in this plan. Greenhouse gases were bad for the environment, was Obama’s reasoning, and therefore, based on the Air Pollution Act, the EPA was able to regulate its emissions. By defining greenhouse gases as ‘pollution’, he was able to pass Congress and decide by decree that the EPA had the authority and even the duty to combat this pollution.

However, Republican opponents of Obama’s climate policy felt that the president had stretched the definition of air pollution too far. Climate policy touched society deeply and had such major economic consequences that only Congress should be allowed to speak on it, they said. And so they asked the Supreme Court to ban Obama’s plan. In 2016, the court came up with a preliminary ruling: Obama and the EPA went too far with passing Congress. The president had to suspend his plan pending a final verdict.

That verdict never came. The main reason for this was that the judgment was no longer necessary. After his election victory, President Donald Trump put an end to all climate ambitions of the US government in 2017. The Clean Power Plan disappeared into the trash and the EPA was sidetracked by Trump. The EPA found that it was no longer part of its powers to reduce greenhouse gases. And Trump also saw no role for the federal government to do so.

After the victory of Joe Biden, who does want to pursue a solid climate policy again, the Clean Power Plan turned out to be long overdue. The reduction that Obama hoped to achieve with the plan in 2030 was achieved without any policy already in 2019. Despite Trump’s promises to reinvigorate the coal industry, hundreds of old coal plants were shut down during his tenure, more than under any other president. Gas-fired power plants and energy from solar and wind also proved to be the most economically attractive option.

The question is therefore why the Supreme Court now wants to pass judgment in the case against the EPA. According to the lawyer of the Biden government, Elizabeth Prelogar, there is no reason for the court to pass judgment on this case now. She even questioned whether the court may pass judgment as long as the EPA does not use any authority to regulate greenhouse gases, and as long as the president has no plans at all to involve the EPA in its climate policy.

The coal industry and the conservative states think otherwise. What is at issue here, West Virginia Attorney General Patrick Morrisey said recently, is the question of who in the US sets the rules.

“Are those unelected bureaucrats or the representatives of the people in Congress?”

Judge Samuel Alito agrees with Morrisey. According to him, it is about whether the EPA rightly claims “power to establish industrial and energy policies and balance issues such as jobs, economic impact, the potentially catastrophic effects of climate change and costs”.

In fact, the background is the question of whether the US government is capable of pursuing an ambitious climate policy. By closing the back door for the EPA, the Republicans hope to thwart president Biden’s climate policy. It is almost impossible to get a majority for that policy in the divided Congress. For months, one Democratic senator – Joe Manchin, not coincidentally from West Virginia – has been able to hold back president Joe Biden’s big investment plan. Large parts of his ‘Build Back Better’ plan are about climate.

According to West Virginia Advocate General Lindsay See, who spoke in the hearing, it should be clear once and for all how far the powers of the Environment Agency go. According to her, the EPA can now make policies “in ways that cost billions of dollars, affect thousands of companies, and are designed to address a problem with a global effect”. According to See, the agency goes far beyond its powers.

Judge Brett Kavanaugh seemed to agree with her. He felt that Congress should speak out clearly “if it wants to give an agency powers with great economic and political significance”. Lawyer Prelogar reminded Kavanaugh that it was the Supreme Court that ruled in 2006 that greenhouse gases were covered by the Air Pollution Act, and that the EPA had the right to regulate them.