Supreme Court Restricts Ability of the Environmental Protection Agency to Regulate Greenhouse Gas Emissions from Power Plants

In 2021, climate action made major strides in the United States as President Biden released executive orders, Congress passed a major infrastructure law, and federal agencies strengthened climate-related regulations. However, 2022, by contrast, has brought significant setbacks for climate action. Likely the most important comes in a Supreme Court decision announced on June 30th, which restricted the Environmental Protection Agency’s ability to regulate greenhouse gas emissions from power plants.

The case, West Virginia v. Environmental Protection Agency (EPA), concerned a regulatory approach that the EPA had tried to follow in the Obama-era Clean Power Plan (CPP). Although repealed in the Trump administration, the CPP would have required that power plants follow a “best system of emission reduction”, which for coal and natural gas plants included things like reducing electricity generation from those sources and ramping up generation from lower-emitting sources. These strategies are examples of “generation shifting” and would have resulted in a turn away from coal in particular. The states suing the EPA argued that the agency did not have the authority to require such shifting under the Clean Air Act because transitioning the power system away from coal has “vast economic and political significance” and should be authorized by Congress. The Supreme Court ultimately agreed, saying that the EPA could not require generation shifting without Congress giving it that authority.

The decision means the EPA now has one less tool in its regulatory toolbox – it can no longer require power sector generation shifting absent approval from Congress. This makes the agency’s job more challenging and is a major setback for President Biden’s goal of reaching 100 percent carbon-free electricity by 2035. Fortunately, though, the EPA can still regulate emissions from power plants in other ways. It could, for instance, set far stricter standards for pollutants like sulfur dioxide or nitrogen oxides, which could have a similar effect of phasing out polluting coal plants without explicitly requiring generation shifting. Time will tell what approach the agency takes following this hamstringing: the EPA is anticipated to come out with new proposed rules for greenhouse gas emissions from power plants in early 2023.

While options remain on the table for the EPA’s regulation of power plant emissions, this ruling could have much larger impacts outside that agency and that rule. For instance, it could cause federal agencies to lower their ambition in releasing climate regulations, due to the fear of future lawsuits. This self-imposed ‘wing clipping’ would be a major mistake given the urgency and ambition required to successfully address the climate crisis.

Most concerningly, the case could set a troubling precedent that could make it easier to strike down the agency and executive actions addressing climate change. Because the Supreme Court ruled in this case that generation shifting is an issue of “vast economic and political significance” and therefore should go through Congress, it’s very likely that we’ll see more challenges against climate regulations because they’re just too consequential for agencies to undertake without explicit Congressional authority. This is especially disturbing given that climate change itself has major economic and political significance and that most approaches to address it will require vast shifts in society, thus increasing the likelihood that those approaches will be scrutinized. Other proposed climate rules, like the EPA’s greenhouse gas emissions standards for vehicles or the Securities and Exchange Commission’s proposed climate disclosure rules, could be endangered by this precedent. If these or other federal regulations are struck down in the wake of the WV v. EPA decision, the United States will face overwhelming challenges in reaching net-zero emissions at the pace necessary to stave off severe climate impacts.

This Post was submitted by Climate Scorecard United States Country Manager Christina Cilento


Climate Scorecard depends on support from people like you.

We are a team of researchers providing information on efforts to reduce global emissions. We help make you better informed and able to advocate for improved climate change efforts. Donations of any amount are welcome.