Supreme Court Ruling Limits EPA’s Ability to Restrict Power Plant Emissions
exeric
| Posted in General Questions on
I decided to delete my content behind my topic because it was too much editorializing. However, the new and accurate title of the subject by Kiley should give everyone enough pause to think about all by itself. It deserves immediate attention by GBA and it shouldn’t be editorialized by me.
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All the ruling means is that Congress needs to pass legislation to regulate this or specifically delegate the authority to do so and the EPA can't act on their own. The ruling does NOT mean no one can regulate things.
Having had to deal with plenty of regulatory stuff at work over the years, I can tell you that many regulations get completely out of hand. Letting ANY agency regulate ANYTHING with no oversight is really not a good idea. The EPA is probably one of the worst offenders here, and a lot of their presumably well meaning ideas are actually often counterproductive. I know, for example (on the state level anyway), of one case where a landowner spent over $100,000 fighting the state equivalent of the EPA when they tried to fine him a LOT of money for illegally daming a stream on his property. The reason he had to fight them was: the dams were built by beavers living in the stream... How did that agency action help anyone?
Bill
I won't argue with anything you said, but here's a different perspective:
I think we can all agree, whether you are conservative or liberal, that Congress isn't really getting much done these days, and probably won't be for the foreseeable future. And if Congress can't even agree on simple stuff, there's ZERO chance that Congress will agree on controversial topics like combatting climate change by regulating power plant emissions. Particularly when something like 50% of Congress doesn't even believe that climate change is real.
So you are 100% correct that this Supreme Court decision simply leaves the issue of power plant emissions for Congress to resolve. But you are 100% wrong, in my opinion, if you think that Congress will actually address it in any way other than simply doing nothing.
And yes, agency regulation is a challenging topic. Sometimes agencies do good things; sometimes they do bad things; sometimes they overstep; etc. But Congress simply does not have the manpower or the expertise to approve every single little detail of how the country operates. In my opinion, power plant emissions is one of those areas that is 1) beyond Congress's expertise, and 2) too small a detail for Congress to really worry about, that it makes it a good fit for regulation by the supposed experts at the EPA.
If you are concerned about climate change, this decision is a disaster because it completely guts the ability of the United States to make a unified effort to combat climate change. Sure, individual states -- the WAs and CAs of the US -- might have their own set of rules to combat climate change. But the West Virginias of the US will not. And their pollution and negative impact on climate change affects not only the entire country, but the entire world.
If you want to understand the broader implications of this week's court rulings, this is a concise but thorough overview: https://heathercoxrichardson.substack.com/p/june-30-2022.
This is why the EPA decision is a disaster:
"...the majority on the court embraced the “major questions” doctrine, which Chief Justice Roberts used today for the first time in a majority opinion.
That doctrine says that Congress must not delegate “major” issues to an agency, saying that such major issues must be explicitly authorized by Congress. But the abuse of the Senate filibuster by Republican senators means that no such laws stand a hope of passing. So the Supreme Court has essentially stopped the federal government from responding as effectively as it must to climate change. And that will have international repercussions: the inability of the U.S. government to address the crisis means that other countries will likely fall behind as well. The decision will likely apply not just to the EPA, but to a whole host of business regulations."
Hi Michael,
I just read the piece by Heather Cox Richardson. It was excellent and pretty much agrees with what I originally said in my comment that I deleted. Maybe I should say that my original comment agreed with hers rather than vice-versa. I deleted it because this subject is too important for it to be tainted by the ability to criticize the messenger of the message, me. Some of us, and I'm specifically including you, know a lot more about things than we are given credit for. Sometimes we have to wait for people of higher social stature to say the same things for the content to finally be taken seriously.
Those were devastating rulings that came down yesterday.
Eric, I read your original post last night and thought it was well-written and reasonable, but I understand why you would be uncomfortable sharing it here. I appreciate your compliment and agree about social stature.
I will try to provide perspective to this ruling as someone who has done environmental consulting for over 40 years and has drafted or helped draft EPA guidance documents, including air monitoring at superfund sites. This ruling is both a major disaster and will have almost no impact on the use of coal for power generation in the US.
On the matter of will this prolong the use of coal for power generation. Most or all of the major power generators are already phasing out coal generation and this rule will not impact their plans. Coal is dead and nothing is bringing it back. The rule may slightly prolong the use of some plants, but there will be darned few coal plants left by 2035. Coal is too expensive compared to natural gas and renewables and the environmental costs (clean up of slag and ash waste will be significant going forward) are too high.
So why do I say this ruling is a unmitigated disaster if I don't believe it will prolong the life of coal generation. Because the precedent this makes to essentially say congress has to have total say on any new regulation will essentially make all regulations null and void as one Congress doesn't have time to become a rule making body for EPA, SEC, FDA, etc. Second, they don't have the knowledge to do the rule making as that should be left to scientists and other experts, and third, Congress can barely name post offices, much less take up whether cancer causing chemicals should be banned (Republicans will always say no as they seem to like cancer causing chemicals, unless they are in their actual back yard). Agencies need non-political autonomy to do what is best for the environment, our food, our drugs using the best science we have at a given time and be able to modify that guidance as new or better science comes along. I generally believe that EPA does a good job regulating and controlling pollution and does make non-political scientific judgements (based on 40 years of working closely with EPA.
I really think most people don't want to go back to the days when powerplants could emit all the SO2 they wanted and chemical plants could dump PCBs in the water ways. I'm spent my life cleaning up after these companies and spent many years studying power plant emissions. Climate change aside, I guarantee you don't want to live down wind of a coal plant.
I appreciate where you are coming from, Eric. And I am glad you spoke up. I agree GBA needs to cover this and I have asked Scott Gibson to give it the fair and news-minded treatment he is so good at. There's clearly a lot to unpack here.
This may be the first major ruling advancing the Non Delegation Doctrine, but it will surely not be the last.
It is not just that Congress is politically hamstrung these days, but that it simply does not have the mechanisms and manpower to draft legislation that is more than a rough framework of what it wants to accomplish. Unlike the world of 200 years ago-which the current Supreme Court seems to prefer- modern problems that we must tackle for our survival are far too complex and have far too many externalities for Congress to regulate directly. Thus modern regulatory organizations (like EPA) full of experts and administrators evolved to fill in the details. And only this type of regulatory organization could possibly confront and litigate against well funded corporations willing to spend huge amounts to push back against regulations that impede their profitability.
Now, corporations and the politicians they have acquired to do their bidding will have a new tool to challenge significant regulatory schemes. Clear guidelines may take years to sort out but it may have a more immediate chilling effect on the establishment of new or expanded regulation. Then liberal states like California and New York will try to fill the gap with state level regulation, spurring a new round of preemption litigation ...
A great time to be a lawyer, maybe not as great for everybody else........