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Climate activists poised to shift focus to states, businesses after EPA ruling

The ruling was narrower than the worst-case options some had feared, and activists are already turning their attention to local efforts.
Image: A worker stands in a coal yard in Winfield, W.V., on July 18, 2018.
A worker stands in a coal yard in Winfield, W.V., on July 18, 2018.Luke Sharrett / Bloomberg via Getty Images file

Dueling sentiments defined the day for climate activists, investors and lawyers as they reacted to the Supreme Court’s decision Thursday in West Virginia v. EPA, which eliminated some of the Environmental Protection Agency’s powers to regulate carbon pollution under the Clean Air Act. 

On one hand, many said they are gutted by the Supreme Court’s ruling. On the other, some feared the court would deal a more fatal blow to the Clean Air Act — and they think the decision merely shifts the venue for the climate fight. 

Climate lawyers said the ruling was narrower than the worst-case options they had feared and that it left legal openings for federal agencies to regulate carbon pollution using other parts of the law.

“EPA still has tools to work with. EPA is still going to do the work of regulating greenhouse gas emissions from power plants,” said Jack Lienke, a policy adviser for the Institute for Policy Integrity at NYU law. “It’s frustrating ... but the game isn’t over.” 

The ruling will almost assuredly make U.S. climate goals more difficult to reach while shifting climate attention to the states, local governments and investors trying to capitalize on the falling costs of clean energy. While the federal government’s credibility could take a hit in international climate talks, momentum toward low-carbon power might no longer hinge on federal regulation, they argued. 

“Our governors are fired up,” said Casey Katims, the executive director of the U.S. Climate Alliance, a bipartisan coalition of state leaders who want to reduce emissions. 

Katims noted that in the time it took for the EPA regulation to reach the country’s highest court, dozens of states have passed landmark clean energy bills. 

The Supreme Court’s decision centered on the Obama administration’s Clean Power Plan and whether the EPA had the authority under the Clean Air Act to make utilities shift away from coal-fired power plants and move to generating power with wind, solar and other cleaner sources of energy. 

The court said the EPA could not require that shift, but it left other options intact for the EPA to regulate power plants under the Clean Air Act.  

“The agency will eventually propose a new rule,” Lienke said, suggesting that such a rule could require coal plants to adopt carbon sequestration technology, co-fire with natural gas or improve efficiency, which would all force emissions reductions. “We will have further fights about those options.” 

In reaching its decision, the court’s majority relied upon new legal reasoning that environmental lawyers worry has paved new avenues to restrict the administrative power of federal agencies. 

“The way this is written, and the invocation of the major questions doctrine, is a big shadow over environmental, public health and safety law,” Jason Rylander, a senior attorney at the Center for Biological Diversity, said, adding that “decisions like this have a chilling effect” on agencies like EPA as they try to enact rules and policy. (The Major Questions Doctrine deals with just how much authority regulatory agencies have.)

Rylander fears the new doctrine could temper EPA ambitions when “it’s not a time to be timid about taking climate action.”

With fewer options at the federal level and new uncertainty over how the Supreme Court will receive regulations, some states and local governments will look to pick up the slack on climate. 

“States’ authority to curb greenhouse gas emissions has not changed,” Katims said, adding that his organization would push for more states to adopt measures like renewable energy standards and zero-carbon electricity goals and to create carbon markets that cap power plant emissions.

Some of that work is already going on at the city level, said Kate Wright, the executive director of Climate Mayors, a bipartisan group of nearly 500 mayors across 48 states. She pointed to places such as Los Angeles, which is closing city-owned coal and fossil fuel power plants, and Houston, which is powering municipal facilities with clean and renewable energy, as cities where local officials are taking the lead to address the climate crisis.

But many of those efforts are limited by jurisdiction and funding, Wright said. The Supreme Court’s decision, which hamstrings climate action at the federal level, is a significant blow.

“We can’t just print money,” she said. “We really are going to need the regulatory power of the federal government. We’re going to need the technical assistance, and we’re going to need the funding.”

Former Vice President Al Gore similarly said the U.S. will need to explore other options to fight global warming.

“We need to see state and local governments redouble their efforts to reduce emissions, we need to see the private sector step up and match their climate pledges with action, and most importantly, we must call on Congress to pass comprehensive climate legislation,” Gore said in a statement.

Former presidential candidate Tom Steyer, an investor and a co-executive chair of Galvanize Climate Solutions, said in an interview that the ruling “puts even more onus” on private businesses and investors to fund projects that will deliver renewable energy at scale. 

“We’re really on the clock,” Steyer said, adding that wind and solar are the cheapest forms of electricity generation. “In the next 10 years, it’s not about investing in new technology. It’s about improving the technologies we have and deploying them.”  

The Supreme’s Court decision is likely to put the Biden administration’s 2030 climate targets even further out of reach, said Wright, of Climate Mayors.

As part of the landmark Paris Agreement, a global pact that aims to reduce greenhouse gas emissions to avert the worst effects of climate change, the U.S. pledged to cut its emissions in half by 2030. The target could be in jeopardy without aggressive climate action from cities, states and the federal government, Wright said.

The court’s ruling could also damage America’s credibility in global climate negotiations, especially with partners that have stronger climate regulations, like the European Union.

“It makes it more difficult for the United States — the federal executive branch — to lead internationally on climate if we can’t deliver on our climate promise by 2030,” Steyer said.

Vickie Patton, the general counsel for the Environmental Defense Fund, which was a party to the case, said that the Supreme Court’s decision was “damaging” but that the EPA still has other ways to control harmful pollution, including addressing methane emissions from the oil and gas industry and tailpipe emissions from passenger vehicles, trucks and buses. Such tools will become even more important, she said.

Patton said that while the potential consequences of the Supreme Court’s decision are “alarming,” it should not be cause for despair.

“If we all work together in the country — if it’s all hands on deck — we can get there,” she said. “But we have no time to waste. We’re really in a race against time to address the climate crisis.”