The conservative majority on the US Supreme Court hit a nadir last week when it overturned Roe vs Wade, the 1973 decision which established that a woman’s right to an abortion was protected by the constitution. Now, in a ruling handed down today (30 June), the same judges have pressed their conservative agenda on planetary health as well.
In the case of West Virginia vs The Environmental Protection Agency (EPA) the six Republican-appointed justices on the Supreme Court ruled in favour of curbing the agency’s powers to regulate greenhouse gas emissions from power plants. Attempts to cap carbon dioxide emissions should “rest with Congress itself, or an agency acting pursuant to a clear delegation from that representative body”, the ruling, which was opposed by the court’s three liberal justices, decreed.
Analysts scrambled to insist that all was not lost for American climate action. The EPA has not been stripped of all its means of regulating greenhouse gas emissions under the Clean Air Act, explained Andres Restrepo, a senior attorney with the Sierra Club, an environmental NGO. It could still, for example, force energy companies to adopt aggressive (and expensive) energy efficiency measures at individual power plants, thereby making renewable energy investment more attractive by default.
But the decision undermines an important route via which Joe Biden could have used his executive power as president to further tackle climate change in the face of a divided Congress and stalled legislation. Not least since Biden’s reconciliation bill, which could put billions of dollars into renewable energy expansion, is currently stuck in Congress and its chances of passing before the midterm elections are not strong. (In December, it only took one Democratic senator, Joe Manchin, to side with the Republicans against Biden’s Build Back Better Bill for it to fail.)
By determining that the EPA case fell within “the major questions doctrine”, the ruling will also, Restrepo adds, now “likely embolden opponents of agency regulations more generally to bring aggressive legal challenges over rules and regulations they don’t like and will give lower court judges more of a green light to strike them down.”
The decision “is exactly what big donors who packed the court wanted”, Sheldon Whitehouse, a Democratic senator, tweeted after the ruling was announced; by opening the door to the “major questions” doctrine, they’ve “given regulatory polluters a hammer”.
The West Virginia vs EPA battle began in 2015 when Barack Obama, as president, used the Clean Air Act to mandate regulations that would limit the production of carbon dioxide emissions. Known as the Clean Power Plan, this was designed to encourage greater investment by states and utility companies in renewable energy. However, a number of states, including West Virginia, stopped it coming into force by suing the EPA for going beyond the Clean Air Act’s original remit.
Attorneys-general from numerous Republican states argued that the EPA should have limited authority to regulate emissions. The Clean Air Act only allows the agency to oversee emissions from a stationary source, they claimed, such as those produced within the physical boundaries of a power plant. It should not, they argued, be allowed to push power companies to shift towards renewable energy more generally.
Many now fear that circumscribing the EPA’s power will be a serious blow to the US’s ability to meet its international climate change commitments. The American climatologist Michael Mann said: “The Bush/Trump-appointed right-wing justices who currently control the Supreme Court have already been roundly criticised for promoting the very sort of judicial activism they once railed against.” In the wake of Roe vs Wade, a ruling against the EPA continues the court’s trend of removing “fundamental rights – to privacy, to safety, and now, to a liveable planet”. The agenda of the Republican leaning court “appears to be to turn the US into a plutocratic, theocratic corporatocracy”, he added.
Failure by the US to keep on track for its climate target of net-zero greenhouse gas emissions by 2050 would jeopardise progress globally. If the world’s biggest economy and largest polluter per capita failed to reduce its emissions, it would become even harder to persuade other nations, especially lower-income ones, to reduce theirs. “The West Virginia vs EPA case comes at a critical moment for our planet,” the Democratic congressman Ro Khanna told the New Statesman. “We are already experiencing the effects of the climate crisis and things will only get worse if we do not take aggressive action and invest in a moonshot for renewable energy.”
Today’s decision would also seem to fly in the face of public opinion. Sixty-five per cent of Americans think that climate change is a major problem and 71 per cent think it will negatively impact future generations, recent polling from Yale University has shown. “As with Roe vs Wade, which was not about abortion but about control over women, a broad decision is about control over the economy,” says Professor Rachel Kyte, dean of the Fletcher School at Tufts University in Massachusetts. “A broad decision would once again show the court to be out of step with where the country is.
“The court did not need to take this case as there was no effective legislation in place. It is difficult to see how this was anything other than a dangerous and ideological exclamation point on a decades long attack on government’s role in protecting citizens.”
The Supreme Court’s ruling on abortion was a “step along the dark political path” the US appears to be taking, Jeremy Cliffe wrote this week. The court’s choice on how to define executive control over emissions could be another.