Experts speak out on court ruling limiting federal agencies on environmental regulations

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A Supreme Court ruling on Thursday limiting the Environmental Protection Agency’s ability to make new air pollution rules could drastically reduce the ability of federal agencies to address key environmental challenges related to cleanliness. water, air and climate – say environmentalists and lawyers – and instead place the onus on a divided and locked-in Congress to find solutions.

The court ruled 6-3 in West Virginia v. EPA that the agency did not have the authority to cap the amount of greenhouse gas emissions generated by coal-fired power plants, forcing energy companies to curtail power generation or pay to sustain production alternative energy sources like wind, solar and natural gas – a process known as “generational shifting”. The court disagreed with the agency’s argument that the Clean Air Act – a half-century-old environmental law – grants the EPA authority to regulate greenhouse gas emissions greenhouse in this way.

“On EPA’s View of Section 111(d) [of the Clean Air Act], Congress has implicitly tasked him, and him alone, with balancing the many vital national policy considerations involved in the basic regulation of how Americans get their energy. There is little reason to believe Congress did so,” Chief Justice John Roberts wrote in the ruling.

In rendering its decision, the court further argued that when dealing with a matter that concerns “a fundamental sector of the economy”, the legislature must explicitly and clearly define the rights it grants to a agency like the EPA to create regulations.

“This Court doubts that the ‘Congress . . . intended to delegate. . . decision[s] of such economic and political importance,” that is, the amount of coal-based generation that there should be over the next few decades, for any administrative agency,” Roberts continued.

Roger Reynolds, senior legal counsel at Save the Sound, an environmental organization in Connecticut, told CT Examiner that the ruling would severely limit the federal agency’s ability to create policies that effectively reduce carbon emissions — a goal that, he said, requires complex systems and the creation of incentives for companies to switch to renewable energy.

“It clearly has, in terms of climate regulation, a major impact in terms of not allowing what was, I think, indisputably and arguably the best system to regulate emissions,” Reynolds said.

But William Yeatman, a fellow at the libertarian-conservative CATO Institute, said the decision would prevent “political adventurism” and put the responsibility for enacting climate laws back into the hands of Congress – something Yeatman said. he judged just.

“Presidents of both bands … have basically dusted off the bills to enact increasingly bold climate policies,” Yeatman said. “That kind of stuff is going to stop, and we’re going to see the EPA’s greenhouse gas regulations more in line with the kind of regulations and behaviors they’ve exhibited over the decades.”

In a dissenting opinion, Supreme Court Justice Elena Kagan said that in the Clean Air Act, the legislature specifically gave the EPA wide latitude to make changes that would reduce air pollution, including greenhouse gas.

“One of the main reasons Congress makes broad delegations like Local 111 [of the Clean Air Act] is how an agency can respond, appropriately and proportionately, to new and big issues. Congress knows what it doesn’t know and can’t know when it writes legislation; and so Congress empowers an expert agency to deal with even the most important issues as they arise.

Reynolds said he was concerned about putting a political body in charge of developing regulations that should be science-based.

“These technical scientific issues should not be political. What is political is – Do you need clean air? So that’s the Clean Air Act, and it says you need clean air. Now, what clean air is, you don’t want to be a political question. You want this to be settled by science,” Reynolds said.

Looking to the States

Reynolds said Connecticut actually offers a case study of what happens when a legislative body has authority over environmental regulations. Under state law, a committee of lawmakers known as the Regulatory Review Board must review and approve each regulation by the state Department of Environmental Protection and Energy before that it becomes law.

Reynolds said the process is cumbersome and frustrating.

“Business is frustrated by it. Advocacy organizations are frustrated. It makes it difficult to do anything – to change anything,” he said.

Daniel Dolan of the New England Power Generators Association, a trade group representing power producers, said he was concerned the decision would change how the Federal Energy Regulatory Commission prices power produced from burning coal. carbon or manages positive incentives for renewable energy. He said that could make it more difficult to meet clean energy goals.

“If we start to see such a strict reading of individual laws by the courts – and here, obviously the Supreme Court, that could really limit the ability to more creatively use some of these markets to better align state priorities around clean energy or decarbonization,” Dolan said.

But Yeatman said he doesn’t believe the decision will affect much of the EPA’s work as a regulator. He said policies like the Clean Power Plan — the 2015 settlement that created the “cap-and-trade” carbon emissions caps the court referenced in its ruling — only happen once. or twice per presidential term.

Furthermore, Yeatman said, the court would only hand over to Congress regulations that meet certain criteria — they must be unprecedented, unusually expensive, something that Congress itself has already failed to pass or a regulation that might be considered “incidental” to the scope of a particular piece of legislation. The rest of the policies would remain under EPA jurisdiction.

“It’s really only a handful of times, especially in the environmental realm, that an agency like the EPA takes on so-called major regulation,” Yeatman said. “It’s not like the EPA releases these major rules every other day.”

Connecticut Attorney General William Tong today called in a statement to continue work toward clean energy development despite the court ruling.

“This is a serious setback, but we cannot lose sight of what is at stake and what is urgently needed to tackle the climate crisis. Obsolete and expensive coal-fired power plants are causing enormous damage to our environment and our economy, and we cannot let this decision delay our transition to clean, renewable and truly affordable energy,” Tong said.

Both Yeatman and Reynolds said the decision would not affect states’ ability to create policy around environmental regulation.

“Generally speaking, when it comes to stationary sources like power plants, states have unlimited, unlimited power to do whatever they want,” Yeatman said.

Reynolds said the Supreme Court’s decision made it even more important for the state to exercise that power.

“What the states of Connecticut and New England and California can continue to do is be a model and lead the way and create the kinds of systems that have been struck down by the court in federal level today,” he said.

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