Hot Combination: Legislative Blockade, Presidential Climate Push, Supreme Court Red Shift
UPDATED - My headline summarizes the core realities of this troubled time in the context of the decision by the Trump-reshaped Supreme Court in the complex climate case distilled as West Virginia et al. versus the Environmental Protection Agency et al.
With Republicans blocking any chance of bipartisan climate legislation, which is the only way to achieve enduring carbon cuts, Democrats push to make the most of existing laws.
Fossil-dependent businesses and states, with financial help from anti-regulatory rich folk, go to court.
A red-shifted Supreme Court sees executive branch overreach.
And so it goes.
You won't be surprised that our weekly news review on my Columbia Climate School Sustain What webcast Friday at 1 pm EDT focuses in part on the decision, which curtails how much regulators pursuing climate action (propelled by a presidency) can fill in the gray areas under grand laws - in this case the Clean Air Act.
You can join me and my guests on Facebook, LinkedIn or YouTube:
Two legal eagles with distinct vantage points will join me, with a guest journalist or two. You'll meet Amy Turner, a Senior Fellow focused on cities and climate law at Columbia's Sabin Center for Climate Change Law, and Jonathan H. Adler, a professor at Case Western Reserve University's School of Law and Volokh Conspiracy blogger. Turner was quoted in depth by Bloomberg's City Lab in a piece on options for cities after the ruling and you can read Adler's column on this decision at the link further down this post.
Here's the decision:
Explore the Supreme Court's decision here and post your thoughts in the comments at the end of this post.
Following on the Roe versus Wade decision, this 6-3 decision by a court now dominated by conservatives is yet another body blow to progressives given how it limits what President Joe Biden, or any subsequent climate-concerned president, can do on heat-trapping power plant emissions without Congress.
There are wider reverberations that could threaten other executive branch moves, under either party, to address evolving challenges using laws that will always lag.
As the climate- and energy-focused Princeton researcher Jesse Jenkins posted on Twitter:
"The Majority's introduction of 'major questions doctrine' will result in more legal uncertainty for new regulations, as lower courts have a new tool to reach for when they want to strike down a rule they don't like, increasing number of legal controversies & time to sort out. Bad."
But, largely referencing a great discussion on his Energy Lawyers Twitter list (I recommend it!), Jenkins also expressed relief, writing:
"In what may be best of plausible outcomes, a radical SCOTUS that has been tearing up precedent all term left EPA’s authority to regulate climate-warming gases intact, though more narrowly constrained."
Do explore the great discussion of the ruling on Jenkins' Energy Lawyers list.
Inserted 2:20 pm ET - Michael Gerrard, the founder of Columbia's Sabin Center for Climate Change Law, made some valuable points in a thread beginning here: "The Supreme Court has prematurely and unjustifiably removed one tool to fight climate change. But it's a large toolkit, and much remains. -- EPA can still regulate GHGs from motor vehicles (the largest source)...."
Also read Jonathan Adler, the Case Western law professor whose Volokh Conspiracy blog has long been a vital way station if you seek the full dimensions of environmental debate. He posted on both the climate news and the Court's decision supporting the Biden administration's move to end the Trump-era "Remain in Mexico" immigration policy.
Supreme Court Rejects Broad EPA Authority to Regulate Greenhouse Gases from Power Plants (Updated)
Supreme Court Gives Biden Administration a (Temporary?) Win on Immigration with Final Decision of Term
While not completely exploding options for Democrats on climate policy, the decision is still a tough body blow because Congress appears incapable of crafting effective climate legislation even with razor-thin Democratic control - with that marginal situation largely the result of years of Republican obstruction and sustained political influence of industry and well-heeled ideological foes of regulation. (Revisit my post on what appeared doable a few weeks ago.)
Here's more on the landscape of debate from Adam Liptak in The New York Times:
Chief Justice John G. Roberts Jr., writing for the majority, said Congress had not clearly given the agency sweeping authority to regulate the energy industry.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ ” he wrote, quoting an earlier decision. But, he added, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
In dissent, Justice Elena Kagan wrote that the court had substituted its own policy judgment for that of Congress.
“Whatever else this court may know about, it does not have a clue about how to address climate change,” she wrote. “And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions.”
Patrick Morrisey, the attorney general of West Virginia and one of the leaders of the challenge to the E.P.A.’s authority, welcomed the decision.
“E.P.A. can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation,” he said.
Richard Lazarus, a law professor at Harvard, said “the court’s ruling is a major setback for E.P.A.’s ability to address climate change, and it could hardly have come at a worse time.”
“By insisting instead that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the court knows that Congress is effectively dysfunctional, the court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change,” he added.
There's still plenty the Biden administration can do, and is doing, to propel climate progress despite the red shift of the Supreme Court, the tactics of Republicans and the scope of the super wicked climate challenge. We'll talk about this Friday.
And there's plenty you can do to help.
I'm not talking simplistically about cutting your personal energy use and emissions - even though that does matter, as I'm trying to demonstrate in our new home in red/blue Maine, switching to community solar via the grid, getting ready for a big insulation and heat-pump conversion, using an electric chainsaw.
I'm talking about widespread engagement that can intensify adoption of energy shifts (and resilience policies) across the nation, where there's far more agreement on a clean-energy future than Twitter or pundits would have you think.
With this in mind, I'll leave the last word to Jigar Shah, who leads the Department of Energy loan program and was just great on a recent Sustain What chat. He explained that there are billions of dollars in loans available NOW for the 19,500 municipalities across the United States to seek to to cut fossil fuel use, energy waste, climate-heating emissions and costs.
Listen to this short excerpt from our chat:
The need, he told me and the energy reporter Kathiann M. Kowalski, is for local activists and doers to make the case for electrified school buses, LED bulbs in millions of street lights and so much more.
"When you think about what this takes, we have 19,500 organized cities and towns and communities in this country; 14,500 of them have a population that's less than 5,000. And so what this requires is a sustained effort at the local level. When the transit authority makes the decision to replace old diesel busses with something else, they need to choose electric busses and we have programs to pay for it. But if the transit agency doesn't apply for the program, it doesn't happen.
"And I can't force them to do it from the federal government. All I can do is say, here are all the resources. But someone in the local community can force them to make a decision that's in their own best financial interest. The same thing's true with the way in which school busses are done. Only 50 percent of streetlights in this country are LED. We can replace all the rest of the streetlights with LED lights. It's like an eight-month payback.
"For whatever reason, everyone's oh, it's a red or blue issue. It's not. Most of the police forces that have moved over to electric are in red districts. So what it takes is someone who actually is willing to spend a few extra hours every week to say, you know what, I want to make my community better. And the federal government's passed $1.2 trillion to support that. But we can't force it from the top down. That's not how our country works, right? It's got to be forced at the local level with resources that we provide to that changemaker and that muckraker."
Everything happening, and not happening, in Washington matters. I'll be conveying more here from legislators like Representative Sean Casten of Illinois.
And recent events show just how much your votes matter. But let's not fixate paralytically on the balance-of-power tussle, which was illustrated beautifully by kid-focused Scholastic in 2019, without keeping an eye on actions that can shift the balance over the long haul.
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