‘The Supreme Court Could Destroy the Planet’: Review of EPA Power Triggers Alarm

By Jessica Corbett. Originally published at Common Dreams

As U.S. President Joe Biden prepares for a consequential United Nations climate summit in Scotland, the Supreme Court on Friday provoked widespread alarm by agreeing to review the Environmental Protection Agency’s authority to limit planet-heating pollution.

“The Supreme Court could destroy the planet. Pass it on,” tweeted Rep. Earl Blumenauer (D-Ore.) in response to the decision.

Republican-led states and coal companies asked the justices to weigh in after the U.S. Court of Appeals for the District of Columbia Circuit in January struck downthe Affordable Clean Energy (ACE) Rule issued under former President Donald Trump.

The day before Biden took office, a divided three-judge panel said that the Trump-era rule—intended to replace former President Barack Obama’s Clean Power Plan, which never took effect—”hinged on a fundamental misconstruction” of a key section of the Clean Air Act that resulted from a “tortured series of misreadings” of the law.

The justices will now consider whether that section of the Clean Air Act “clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system.”

Though there was some initial confusion about the forthcoming review due to a typo in Friday’s order that was later corrected, climate action advocates and legal experts frantically issued warnings about how a ruling from the high court’s right-wing supermajority may impede the Biden administration’s efforts to combat the climate emergency.

“This is the equivalent of an earthquake around the country for those who care deeply about the climate issue,” Harvard University law professor Richard J. Lazarus told The New York Times. The court’s decision threatens “to sharply cut back, if not eliminate altogether, the new administration’s ability to use the Clean Air Act to significantly limit greenhouse gas emissions from the nation’s power plant[s].”

The development comes a day after Biden announced a $1.75 trillion watered-down version of the Build Back Better Act that stripped out some climate provisions due to opposition from Sen. Joe Manchin (D-W.Va.), one of the corporate-backed, right-wing party members who has held up the package designed to include much of the president’s agenda.

Although the Biden administration is still working on ways to cut emissions that don’t rely on the section of the Clean Air Act in question, HuffPost‘s Alexander Kaufman explained how an unfavorable ruling from the Supreme Court could cause problems, given current conditions in Congress:

“It’s only this one statute of the Clean Air Act, which is one of many tools the administration has,” Michael Gerrard, director of Columbia Law School’s Sabin Center on Climate Change Law, told HuffPost. “I don’t think it’s a problem for most of the measures the administration might want. But there’s this one particular tool that might be in trouble.”

The court could, however, seek to “take this as an opportunity to rule more broadly about the ability of Congress to delegate decisions to agencies,” by going after the non-delegation doctrine, and might “say Congress is going to have to give EPA authority over such an important area and be more clear and explicit.”

That would likely constitute a victory for the plaintiffs. With a 50-50 split in the Senate, Democrats need to vote in lockstep to pass a bill, giving unique power to lone senators like Manchin, whose opposition to climate regulations and personal family fortune tied up in a coal business have made him a magnet for fossil fuel industry donations throughout the past year. He’d be unlikely to vote for legislation granting the EPA new powers to regulate greenhouse gases. And Republicans are favored to win back at least one chamber of Congress in next year’s midterm election.

This “is the most significant climate case to reach the Supreme Court since 2007, when the justices ruled in Massachusetts v. EPA that greenhouse gases could be regulated as air pollutants under the Clean Air Act,” noted E&E News.

As the petitioners, including 19 states led by West Virginia, celebrated the court’s announcement, campaigners such as David Doniger, senior strategic director at the Natural Resources Defense Council’s Climate & Clean Energy program, vowed that “we will vigorously defend EPA’s authority to curb power plants’ huge contribution to the climate crisis.”

EPA Administrator Michael Regan, meanwhile, signaled in a pair of tweets that the Biden administration will keep up its work to address climate-wrecking pollution.

The federal agency, Regan vowed, “will continue to advance new standards to ensure that all Americans are protected from the power plant pollution that harms public health and our economy.”

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  1. Darius

    Democrats talk about the disastrous Republican Supreme Court only when it’s too late to do anything about it. They never mentioned the issue of destroying agency power to implement laws during the hearings for any of Trump’s Supreme Court nominees. Don’t want to offend any donors.

    All they ever do is wring their hands about Roe. And they don’t even do anything to protect that.

    1. BeliTsari

      That’s exactly the issue that’s dragged us over the edge, QUITE intentionally. We’re to ignore our duopoly oilgarchy. Obama’s Administration promoted, exponentially expanded, covered-for (and terrorized whistleblowers, dissidents and journalists) THEN, bailed-out the collapsing shale gas/ oil pyramid; right as regulation, oversight & industry 3rd Party, participants’ internal QA/ QC all raced to the bottom. BP’s killing the Gulf was simply a demonstration of corporate capture of regulatory, oversight and media. I’m personally preparing for ALL repercussions AGW, air, water & food pollution to grow exponentially worse as their tag-team kleptocracy shrugs off any facade of governance & media announces, it’s simply too late: here’s how Musk, Gates, Bezos, Bloomberg… are going to spend our money on stereotypical catastrophe capitalist shucks and jives?




    2. megrim

      If they actually protected it, the dems couldn’t use Roe’s vulnerability as something to rile up their base. I’d say this also means that the GOP would never repeal Roe, except Republicans are all about getting things done. Plus they could just move on to really destroying access to birth control etc.

  2. Bill Smith

    Congress can change the law to cover this if needed. Isn’t that the way it is supposed to work?

    And if the argument is that Congress can’t get anything done, well, that’s not the Supreme Courts’ fault. It’s ours, since we elect the Congress.

  3. Alex Morfesis

    As soon as we get some lawyers working for organizations that want to get the actual work done instead of using waffled nonsense to keep “fund raising” a lawsuit will be filed on the simple matter of trespassing…an entity is trespassing into my lungs to improperly dispose their waste product by invoking some form of corporate squatters rights…it is a simple trespass argument…

  4. Pricknick

    I don’t believe the Biden administration needs any help on impeding itself.
    Never forget the nothing will fundamentally change.

  5. Jeremy Grimm

    This post seems vague about what powers the clean air act conferred on the EPA which are in contention: EPA’s ability to “limit planet-heating pollution”, “how to restructure the nation’s energy system”(!!???), “use the Clean Air Act to significantly limit greenhouse gas emissions”, use “one particular tool that might be in trouble”, “curb power plants’ huge contribution to the climate crisis”. The claim that the supreme Court could “destroy the Planet” impresses me as beyond hyperbole. I remember reading something to the effect that some Biden climate initiative hoped to use the Clean Air Act as a tool for controlling the emissions of CO2 — and I am not sure whether the idea included using the Clean Air Act to control methane emissions. Given the present structure of the supreme Court and its inclinations to create ‘remarkable’ rulings that can act as poisonous precedents to underpin future even more ‘remarkable’ rulings — and if I am correct about the matter in contention before the Court — what wisdom lead Biden and his team to attempt using the Clear Air Act in this way? After the supreme Court’s hand-grenade tossed out on the issue of abortion, any wonk worth the weight of a sheet of typing paper would have avoided any novelty or subtlety of law that would let a matter have easy opportunity to come before the supreme Court. After its past history of regulatory capture, I can only imagine an attempt to place Climate Change under the purview of the EPA were an insurance policy to assure that Climate Change would not be allowed to impact profits. Who in their right mind would give the EPA the power to “restructure the nation’s energy system”? Was a very large sum provided for hiring engineers and scientists to staff up the EPA with a few technical people included in one of Biden’s legislative omnibus packages?


    I don’t believe the Biden administration needs any help to impede their efforts.
    After all “nothing will fundamentally change.”

  7. Susan the other

    I’d like to see Congress given this responsibility. We would quickly learn just who is the stumbling block to effectuating anti-pollution measures. I’m sure Manchin is not the only one. He’s just a good lightning rod right now. We need to make someone, corporations, responsible for the damage they do. Pollution (of all kinds) is poison – there’s no arguing that one. So if it becomes a profitless business to sell and use coal (who are the coal users, they should pay reparations as well as the producers) then coal is dead. There’s more than one way to skin a rat. We might all want to watch China and see how they curtail their coal use. One thing about coal is you can’t hide the fact that you have furnaces going 24-7. You can see it from space.

    1. Jeremy Grimm

      As I recall from my high school civics class — Congress already has and long has had ‘this’ responsibility.

  8. solarjay

    Its obvious to me that both parties are now completely owned by the donor class. Trying to get congress to actually pass the correct bills is now proven to be impossible, 83%+ want prescription drug price reform and no it won’t happen.
    To me the only way to get non carbon energy production is with tax breaks, incentives and guaranteed profits etc to well, pay big biz to do this. In that regard, big biz is easy because they don’t have any morals, only profit. So pay them handsomely for CCS, DCA, Gen 4 nuclear, geothermal, solar, wind, battery/storage technology etc. Fund schools and engineering firms to develop new technologies

    Want to encourage better cars, give bigger incentives. I have a full sized pickup for my solar work, and because its over 8000# GVW, I received a $25,000 tax deduction. Did I need a full sized truck, no but it was cheaper to buy than a smaller one. The big 3 made billions on this tax deduction for trucks and large SUVs.

    So use the same idea to get car companies to build the type of cars you want. That is not to make 5-6000# electric cars, but smaller electric, smaller hybrid, or normal gas powered with mileage above 80mpg, whatever. But our corrupt leaders will not do the right thing, they are proving it day by day. Oh and not just tax deductions but actual money if you don’t have the tax burden to take the credit, that would go directly to the car price.

    Big biz runs things, so give them the money to do what we want. I don’t see any other way especially for the climate emergency.

  9. WhoaMolly

    > I have a full sized pickup for my solar work, and because its over 8000# GVW, I received a $25,000 tax deduction.

    For years I drove a 1996 Ford Ranger pickup which had a curb weight of 2900 pounds. The curb weights of the 2021 Ford Ranger models are between 4200 and 4500 pounds.

  10. Sound of the Suburbs

    Why aren’t we getting anywhere on environmental issues?
    We need to get to the heart of globalist doublethink to see the problem.

    Why will globalisation be an environmental disaster?
    Western companies couldn’t wait to off-shore to low cost China, where they could make higher profits.
    Maximising profit is all about reducing costs.
    China had coal fired power stations to provide cheap energy.
    China had lax regulations reducing environmental and health and safety costs.
    China had a low cost of living so employers could pay low wages.
    China had low taxes and a minimal welfare state.
    China had all the advantages in an open globalised world.

    Environmentally friendly measures cost money and reduce profit.
    The goal is to maximise profit.

    Why do firms move to Mexico and export into the US?
    Companies prefer Mexico with its cheap labour, lax health and safety standards, and lack of environmental regulations.
    They can expose workers to hazardous chemicals and just pump toxic waste straight out into the environment, without incurring the costs associated in dealing with them in an environmentally friendly way.
    Every avenue must be explored to reduce costs.
    The lower the costs, the higher the profit.

    The more environmentally friendly you are, the less internationally competitive you will be.
    “ ….. today, authorities in Inner Mongolia approved restarting production at 38 open-pit coal mines to boost China’s supplies ….”
    “Meanwhile, Chinese banks are financing a blizzard of new coal plants across South East Asia as part of the Belt and Road”
    Coal is one of the cheapest forms of energy.
    It will help them keep costs down.

    “Show me the incentive and I’ll show you the outcome” Warren Buffet’s partner Charlie Munger

    Environmentally friendly measures cost money and reduce profit.
    That’s the problem.
    The incentives push everyone towards being environmentally unfriendly.

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