by Joe Morris
In late June, the Supreme Court issued a ruling that the existing Clean Air Act only applies to reducing coal plants’ emissions and not mandating their replacement. Chief Justice John Roberts wrote for the conservative majority: “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.” … But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body…”
Justice Kagan wrote for the minority: “Whatever else this Court may know about, it does not have a clue about how to address climate change. 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. The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.”
My interpretation of what’s going on is that EPA writes regulations based on laws written by Congress. Congress supplies the goal and the limits of these regulations. For the Clean Air Act, written in 1974, the EPA determines the “best methods” of achieving a reduction in carbon emissions in coal plants and writes those into the regulation. The electricity suppliers are expected to upgrade their plants to meet these requirements. In general, these upgrades have been limited to existing technology that can be added to the existing plant, such as various types of scrubbers. In the past decade, the EPA has set the goals such that they can only be met by replacing coal plants with natural gas and renewable energy plants such as solar and wind with a goal of reducing the caps on emissions well beyond what any existent scrubber or other additional add-on or modification could achieve. In other words, driving the industry toward renewable energy. The majority of the Court thought this was overstepping the Agency’s bounds. In other words, the Court held it “highly unlikely that Congress would leave to ‘agency discretion’ the decision of how much coal-based generation there should be over the coming decades.” One really odd thing that caught my eyes is that the court found that “Understand[ing] and project[ing] system-wide . . . trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.”
My problem with this statement is that, in agreement with Justice Kagan, and this is strictly my personal opinion, the Court is showing it really doesn’t understand the technical expertise available to the EPA.
It’ll take time for Congress to come up with a new law to address the issues raised by the Court. Meantime, we, as energy consumers, can make better decisions when choosing the right energy mix to fight climate change.