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Editor’s Note: The following is the opinion of Jim Olson, FLOW’s founder and senior legal advisor.
Jim Olson, FLOW’s Founder and Senior Legal Advisor
Temperatures soar to record highs, fires rage across the West, drought and deluge plague cities and countryside, and unprecedented water scarcity endangers hydration, food, health, and life itself.
No one credibly disputes the alarming increase in global temperatures and the untold suffering and cataclysmic havoc attributable to greenhouse gas pollutants. One of the primary pollutants causing this unfolding collapse of humanity and the Earth’s climate is carbon dioxide or CO2. The United Nations Intergovernmental Panel on Climate Change (IPCC) released a report in February 2022, urgently warning government leaders and people across the globe that we have 10 to 15 years to drastically reduce greenhouse gases like carbon dioxide or CO2.
Unfortunately, our newly constituted Supreme Court acted more like “supreme rulers” than an independent judiciary, choosing politics and their fixation on narrow legal ideology over the urgent need to reduce greenhouse gasses under a realistic and fair reading of federal law—the Clean Air Act (CAA). The CAA delegated authority to the U.S. Environmental Protection Agency to evaluate and require the “best systems” available to reduce greenhouse gasses at U.S. coal and natural gas power plants. As a result, until Congress corrects the problem, carbon dioxide- and methane-polluting power plants in the United States will continue to release those greenhouse gasses into the atmosphere from burning coal and natural gas.
Until citizens elect a responsible Congress, it is up to the states, local governments, and us in every way possible to immediately reduce greenhouse gases and protect ourselves, our children, and grandchildren.
Anyone who has been exposed to the machinations of Congress in the last 20 years knows very well that Congress isn’t going to correct the problem any time soon. This means, it is up to the states, local or regional governments, and citizens—you and me, to lead the way on the epic energy transition needed to address climate change. Our children and grandchildren, and theirs, depend on it.
How Did We Get Here?
In 1970, Congress passed the Clean Air Act (CAA) to authorize the U.S. Environmental Protection Agency (EPA) to reduce the emission of pollutants from sources of air pollution, including coal-fired power plants. Carbon Dioxide is a pollutant. Under the CAA, EPA can adopt the “best system of emission reduction” (BSER) to require power plants to reduce CO2.
During the Obama presidency in 2015, because technological fixes to reduce CO2 at power plants were ineffective to achieve needed reductions in CO2, EPA adopted a combination of three “best systems” or BSERs to require utilities to reduce CO2 at coal power plants: (1) technological fixes; (2) shift to natural gas from coal; and (3) inclusion of solar and wind generation. Each of these approaches are “best systems” to achieve the necessary reduction of emissions, and as required by the CAA, the Environmental Protection Agency adequately demonstrated these systems would work and are viable. The coal and utility industries and several coal-dependent states opposed EPA’s BSERs and appealed to the courts.
Looking more like “supreme rulers” than a Supreme Court, the conservative majority violated their own ideology that abhors judicial activism. Who is actually legislating here?
In 2019, sticking to Trump’s political agenda, the EPA repealed the three BSERs. Despite the Clean Air Act’s broad grant of authority to EPA to adopt “best systems” to reduce CO2, Trump’s EPA claimed that the use of the word “system” by Congress meant only on-site power plant technological fixes, concluding that the CAA did not authorize EPA to require utilities to reduce CO2 emissions by shifting some of their energy production to natural gas, solar, or wind. In 2021, when President Biden took office, EPA announced plans to revoke the Trump repeal of the Obama EPA three-pronged CO2-reduction plans. Before Biden’s EPA plan took effect, however, the U.S. Supreme Court blocked it and granted the appeal by the utility industry and several states.
On June 30, 2022, in West Virginia v. Environmental Protection Agency, one of the most important climate change cases in a decade, the U.S. Supreme Court’s new 6 to 3 conservative majority established under former President Trump ruled that the CAA term “best system of emission reduction” means only technological improvements at existing coal plants. In effect, the Court ruled that the key words “best systems” did not give EPA the authority to require the utilities that own or operate plants to add more natural gas, solar, and wind energy systems to their energy portfolios to reduce greenhouse gasses. As a result of its decision, the Court shackled EPA’s authority to combat climate change by reducing CO2 from power plants.
The failure of the Supreme Court to accept the broad grant of power by Congress to the EPA with the words “best system” in the face of the reality of CO2 emissions, global warming, and cataclysmic climate change effects has no legal or moral justification. As the famous Supreme Court Justice Oliver Wendell Holmes Jr. once observed to the effect, “The life of the law is not logic, but experience.” – In fact, the current Court’s conservative majority failed to draw upon either one.
No one credibly disputes the alarming increase in global temperatures and the suffering and cataclysmic havoc caused by climate change are attributable to greenhouse gases. As a result of the decision, the EPA’s authority to combat climate change by reducing CO2 from power plants has been shackled.
The W. VA v. U.S. EPA decision can be explained only in terms of politics and ideology. Politically, the Court followed Trump’s and his corporate cronies’ continuing denial of climate change. Ideologically, the Court followed the litany of a minority of ultra-conservative academics, lawyers, and judges who believe the size and authority of government should be diminished wherever possible, no matter the chaos or burden heaped on people and the Earth. True to its ideology, the majority of the Court decided that EPA, within the executive branch of government, invaded the powers of Congress by exercising “legislative power” when it interpreted the words “best systems” to include requiring utilities to shift to natural gas, wind, and solar energy systems.
Looking more like “supreme rulers,” the conservative majority violated their own ideology that abhors judicial activism by engrafting the words “technological improvements at existing power plants” to the phrase “best system.” The Court itself interfered with the legislative power of Congress by judicially amending the CAA to achieve its end: keep fossil fuel power plants running by shackling the authority of EPA to reduce pollutants like CO2. If we have a constitution that forbids one branch of government from interfering with the powers delegated to another branch, our Supreme Court’s decision in West Virginia v EPA was unconstitutional. The decision will not withstand the test of time and urgency of climate change. The Court placed itself above the law and Constitution, deciding, in effect, to let our country, its people, and communities burn and suffer the grave impacts to their lives, health, community, environment, and world. Until citizens elect a responsible Congress, it is up to the states, local governments, and us in every way possible to immediately reduce greenhouse gasses and protect ourselves, our children, and grandchildren.
