The Supreme Court As Climate Regulator
Amid an unprecedented session of the U.S. Supreme Court that rolled back abortion rights, making it a global outlier, the court now seems set on undoing the power of federal agencies to carry out policies as they see fit—endangering U.S. climate goals in the process.
On Thursday, the court ruled 6-3 to limit the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The majority opinion cited the “major questions doctrine,” as a rationale for its decision, the idea that Congress, not federal agencies, should “address major political and economic questions.”
Its conclusions were criticized by Justice Elena Kagan in her dissent: “Whatever else this court may know about, it does not have a clue about how to address climate change.”
“The court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy,” she added. “I cannot think of many things more frightening.”
Leah Stokes, a climate policy expert at the University of California, Santa Barbara, said that while the decision stopped short of stripping all power from the EPA as some had feared, the precedent the court set in rolling out its new doctrine could have far-reaching consequences.
“What on earth gets counted as major and not major? That really becomes the issue,” Stokes told Foreign Policy. “And so that’s the big concern—how this is opening the door to basically giving a blank check to the Supreme Court to undermine any kinds of administrative action just because they—these human beings—don’t particularly like it.”
West Virginia attorney general Patrick Morrisey, who brought the case to the court, said he would continue to question the EPA’s right to regulate carbon emissions. Morrisey has already filed a case in a lower court challenging the agency’s ability to regulate car pollution.
The Supreme Court decision highlights the how fragile any U.S. gains on climate policy are as well as how far the country has to go to meet pledges necessary to prevent catastrophic global temperature increases. It’s also a sign of the slow movement the Biden administration has made on climate policy as it competes against fossil fuel interests within the Democratic party.
Alden Meyer, a senior associate at climate think tank E3G, said the decision could damage the ability of the U.S. to convince other countries to cut emissions.
“If the U.S. is not walking the talk at home and delivering on its pledges, that provides a very powerful talking point for domestic opponents of climate action, whether they’re in Beijing, New Delhi or elsewhere to say, look, the world’s largest economy, and second biggest polluter isn’t doing its fair share. Why should we do it?” Meyer told FP.
“But that’s starting to be undercut somewhat by the fact that—even putting climate aside—a clean energy package of technologies is the most cost-effective path forward for these countries to lift people out of energy poverty and develop their economies. So I think it’s leading some countries to say, well, even if the U.S. doesn’t do everything it should do or said it would do, it’s still in our economic self-interest.” Meyer added.
The United States isn’t the only country lagging behind in its climate commitments. According to the Environmental Performance Index, a ranking of climate policy progress compiled by Yale and Columbia universities, just one member of the Group of 20 major economies—the United Kingdom—is on track to reach net zero carbon emissions by 2050. The United States, along with other major emitters like China and India, ranks last, as carbon emissions continue to rise in those countries.
In Europe, the march towards renewables and away from fossil fuels has taken a backwards step, as leaders struggle to replace Russian gas for its energy needs. Instead, some countries have turned to coal-powered electric plants bringing back the most polluting fuel. That u-turn has raised fears that Europe’s clean energy goals will be placed on the back burner in favor of whatever power is available.
Sarah Ladislaw, the U.S. director at the environmental think tank RMI (formerly known as the Rocky Mountain Institute), said that advances in technology mean that Europe’s leaders don’t need to reflexively turn to fossil fuels to make up for the Russian energy deficit.
“Unlike the 1970s where there was a vision of some alternative technologies that could one day be affordable and reliable, they actually exist today, and so they’re not on completely separate time frames from when you could bring on more oil and gas supply or coal supply,” Ladislaw said. “So I actually think that we’re in a little bit of a race for alternative technologies and oil and gas technologies. And it’s not clear that one technology is winning over the other.”
Even as U.S. leadership on climate policy has yet to match the ambition shown at the beginning of Biden’s term, leaders outside Washington are still moving forward. California Governor Gavin Newsom committed $54 billion to climate action on Thursday, a sum comparable to Germany’s climate commitments.
And later this month, Democrats are expected to renew efforts to pass climate legislation before November’s midterm elections. Stokes of UCSB remains optimistic that a deal can be struck, even if conservative Democratic Senators Joe Manchin and Kyrsten Sinema seek deep concessions. “I think the reality is if we if we get a climate bill that looks anything like what we saw in the House, it will be the largest climate bill in world history. That’s what we’re talking about here.”