This post was originally published by Legal Planet. Reprinted with permission.
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.
The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.
The Clean Power Plan has no practical significance today: the deadlines in the plan have long since passed, and the United States has achieved the plan's national target for other reasons, even though the plan itself never went into effect. The Trump administration said that the second two prongs, involving shifts away from coal and toward renewables, went beyond EPA’s powers under the Clean Air Act. The Trump EPA also said it was very limited in what kinds of emissions requirements it could impose on coal-fired power plants themselves.
How to respond to the Court’s decision will depend on how sweeping the decision turns out to be. It seems clear that the Court will strike down the third pillar of the Clean Power Plan, which targets overall shifts in a state’s generation mix, including shifts away from companies owning fossil fuel plants to other generators. Here are the possible ways the Court might rule, from the narrowest to the most damaging.
Scenario #1: The Court strikes down only the third prong of the CPP. That ruling would leave EPA free to treat owners of fossil fuel plants as a separate category and to require them to switch some of their generation to lower-carbon or zero-carbon sources. This outcome would actually give EPA quite a bit of leeway, especially given that many states with high emissions also have electricity markets dominated by one or two utilities. The Biden administration would have plenty to work with in crafting new regulations.
Scenario #2: The Court strikes down both the second and third prongs. This ruling would be more of a severe blow, but not necessarily disastrous. Unless the Court imposes limitations on what kinds of restrictions EPA could place on coal-fired generation plants, EPA could still do quite a bit to cut emissions. In particular, it could require coal plants to co-fire with natural gas or wood chips, which could reduce emissions substantially. I think this is the outcome many environmentalists are hoping for.
Scenario #3: The Court adopts the Trump administration’s position. Such a ruling would leave EPA with very little power to cut carbon emissions from the power sector in a direct way. It might be able to tighten the squeeze on fossil fuels, however, by ramping up other pollution regulations dealing with interstate air pollution, ceilings for particular types of pollution, regulation of methane leaks from gas production, etc.
Scenario #4: The Court entirely stripes EPA of power to regulate greenhouse gases. To get to this outcome, the Court would have to overrule its landmark decision in Massachusetts v. EPA, something the parties did not request. I view this outcome as quite unlikely … but you never can tell. One side effect of such a ruling would be to make it easier for states and cities to sue utilities and fossil fuel producers for causing climate change. States like California would want to double down those suits. Overruling Massachusetts v. EPA would also eliminate EPA’s power to regulate carbon dioxide emissions from vehicles, which would be a big blow. This would also probably eliminate the waiver that allows California to issue regulations of its own. One workaround would be for California to sharply increase the stringency of its regulations for particulate and ozone-producing emissions by vehicles, which it would still have the right to do. This could have the effect of forcing vehicle manufacturers toward more rapid adoption of non-polluting electric vehicles.
In theory, a possible response to any of these scenarios would be new legislation from Congress. That’s so unlikely that I almost forgot to mention it at all.
Keep in mind that the Court might surprise us with some entirely unexpected ruling, and there may be countermoves that I haven’t thought of. But at least this is a start in gaming out possible responses to the Court’s decision.
Showing 2,824 results
Daniel Farber | May 25, 2022
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.
William Funk | May 24, 2022
The Fifth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities.
Marcha Chaudry | May 24, 2022
Conventional wisdom holds that seeing "natural" and “organic" on product labels somehow means the companies selling those goods are using better, safer ingredients. However, these words often offer a false promise to consumers and the planet.
Alex Kupyna | May 23, 2022
While the Center for Progressive Reform staff advocate for stronger protections from toxic chemical spills, none of our experts assumed that one of our own would gain firsthand experience on the matter.
Jake Moore | May 19, 2022
In 2001, an explosion at the Motiva Enterprises Delaware City Refinery caused a 1 million gallon sulfuric acid spill, killing one worker and severely injuring eight others. In 2008, an aboveground storage tank containing 2 million gallons of liquid fertilizer collapsed at the Allied Terminals facility in Chesapeake, Virginia, critically injuring two workers exposed to hazardous vapors. In 2021, the release of over 100,000 gallons of chemicals at a Texas plant killed two contractors and hospitalized 30 others. In addition to injury and death, workplace chemical spills and exposures contribute to an estimated 50,000 work-related diseases such as asthma and chronic lung disease each year, as well as nearly 200,000 hospitalizations. The Occupational Safety and Health Administration (OSHA) was created to reduce risks and hazards to workers, and to prevent incidents like these. However, following through on this promise has been another matter.
Daniel Farber | May 4, 2022
Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.
Daniel Farber | May 2, 2022
Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.
James Goodwin | April 27, 2022
Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it's a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America's older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public. The Federal Energy Regulatory Commission (FERC) — which oversees much of the country's energy infrastructure and helps set rules, rates, and standards for energy markets — is undertaking new efforts to level the playing field. A new Center for Progressive Reform report examines one of these efforts: the establishment of the Office of Public Participation (OPP). After decades of delay, FERC finally began setting up the office this past year.
Marcha Chaudry | April 26, 2022
Earlier this month, HBO Max aired an important series about toxic ingredients in cosmetic products. The series also examined the professional beauty industry and the health effects to workers exposed to toxic ingredients. Toxic ingredients are found in cosmetics and other personal care products. The toxic chemicals used in them have been linked to a wide range of health problems, including ovarian cancer, breast cancer, early-onset puberty, fibroids and endometriosis, miscarriage, poor maternal and infant health outcomes, diabetes and obesity, and more. As I noted in Not So Pretty, "There is a loophole in federal regulation that allows industry to use almost any ingredient and label it as 'fragrance.'"