The Supreme Court’s climate decision, explained


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When Congress passed the Clean Air Act in 1963, the immediate need was evident. Decades of industrialization had led to pollutants – fine dust, smog, carbon monoxide – getting into the air and endangering public health and quality of life. After the creation of the Environmental Protection Agency (when the original law was expanded), managing air pollution control became part of its mandate. The Legislature wanted cleaner air, and the EPA was the Executive Branch’s vehicle to achieve that.

It worked. America’s air has become much cleaner, and while there are still emissions of small particles and ozone, things have improved. The law was effective.

In recent decades, however, a new form of emissions has emerged as a public health risk: greenhouse gases. For years, heavy industry created air pollution that directly sickened individuals. Now the attention of the scientific community turned to emissions that were helping to blanket the planet in heat-trapping gas and endangering humanity more generally.

We don’t usually think of carbon dioxide – the most common greenhouse gas – as a pollutant. We exhale carbon dioxide; we don’t exhale smog. But not everything we emit from our bodies is something we think should just be allowed to surround our surroundings all the time. That’s why we have sewage systems. Therefore, attention turned to this other form of pollutants.

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When climate change first came to public attention about 15 years ago, there was a push for Congressional legislation that would establish a mechanism to limit carbon dioxide in particular. The main source of carbon emissions is electricity generation; especially the burning of coal. So Congress discussed various ways to limit coal burning, including a system where carbon emissions would become part of a market where emitters — polluters, if you will — the ability to produce carbon dioxide could trade like someone stocks would act.

But the emergence of climate change as a political priority soon faced a backlash. Barack Obama’s election sparked a strong opposition force from the right that included opposition to new legislative efforts on greenhouse gases. This response was in part a function of passionate advocacy by fossil fuel advocacy groups, but soon became central to the conservative worldview. Tackling climate change was presented as an intrusion into capitalism aimed at addressing something that was not a problem…or later was not a problem that the US alone could solve.

Activists had already advocated another way to reduce greenhouse gas emissions: The EPA should use its power to regulate pollutants to create rules to limit carbon dioxide emissions. The EPA refused in 1999 and took the fight to court. After years of back and forth, it ended up in the Supreme Court. In the 2007 judgment Massachusetts v EPAthe court (led by its Liberal faction) ruled that the EPA could use its Clean Air Act power to regulate carbon dioxide and other greenhouse gas emissions.

Failing in Congress to pass legislation with the same goal, the Obama administration has passed regulations through the EPA designed to limit emissions and spur the transition from coal to cleaner energy sources. Regulations for new plants were created. Regulating the existing ones was more difficult, both legally and practically – and also more important for combating climate change.

The improvement in hydraulic fracturing (fracking) technology meant that natural gas suddenly became much cheaper, prompting some producers to switch from coal to natural gas simply for market reasons. But coal producers and some coal-fired power plants opposed proposed regulations that would hurt their businesses. They got a boost in 2015 when the Supreme Court ruled Michigan vs EPA that the agency had to consider economic costs when making environmental regulations, a shift from its previous mandate to focus its decisions on public health.

A number of red states are suing the EPA to block emissions-reduction regulations, leading to the case the court ruled on Thursday. West Virginia vs. EPA. The focus was on the EPA’s authority to regulate emissions from existing power plants. The majority ruled that the agency had no such authority.

The debate, contained in the majority opinion authored by Chief Justice John G. Roberts Jr. and dissenting opinion by Judge Elena Kagan, focuses heavily on the specific legal issue of what the EPA was trying to do. But it also involves a broader debate about how to deal with climate change in general.

Roberts doesn’t mention that Massachusetts decision instead of focusing on why he doesn’t think Congress intended to grant the EPA the authority it wields and, importantly, that it does necessary express authority in this case. Kagan’s response strongly argues that Congress routinely delegates implementation issues to government agencies.

“Congress knows what it does not know and cannot know when drafting a statute; and Congress therefore empowers a body of experts to address problems—even significant ones—as they arise,” writes Kagan. “That’s what Congress did with the passage of Section 111” — the section of the Clean Air Act at issue. “The majority today is disregarding this legislative decision.”

“Why would not Congress directs the EPA to ‘choose the best system for reducing emissions,'” she later added, “instead of trying to choose that system itself? Congress knows that emissions reduction systems are not in its own domain, but in EPA’s “unique expertise.” ”

Kagan mentioned Massachusetts, citing his finding that “there is nothing to counter the idea that EPA can limit emissions of substances that disrupt global climate.” But their argument did not prevail. The EPA’s ability to restrict these emissions from existing power plants has been cut off.

What has changed since then Massachusetts in 2007? A few things. One is that climate change became a highly partisan issue, which helped spur rapid responses from Red states to Obama’s emissions proposals. Another reason is the composition of the court. Roberts joined Justices Clarence Thomas and Samuel A. Alito Jr. in the minority Massachusetts; Now they have three ideological allies who have allowed their view to prevail. You have these allies, of course, thanks to the cascade of factors that allowed Donald Trump to appoint three people to the court.

In his majority opinion, Roberts inserts a striking quote from the 1992 decision New York versus the United States, in which the court found that federal legislation over-constrained state powers. The Constitution, the majority view in this case held, “divides power among sovereigns and branches of government precisely so that we can resist the temptation to concentrate power in one place as a convenient solution to the crisis of the day.” Roberts chose the quote “Crisis of the Day” and argued that “[c]Reducing carbon emissions to levels that will force a nationwide transition away from using coal for power generation may be a sensible ‘fix to the crisis of the day.’” Congress did not give the EPA authority to do so.

It is clear that Roberts is trying to suggest that the emergence of something important does not permit an extraordinary exercise of power. But comparing climate change – a trend more than a hundred years old that will last for decades or centuries – to a “crisis of the day” is staggering. It reads pejoratively as a suggestion that climate change is flying high.

That West Virginia The decision, released Thursday, is itself likely to have significant shelf life as it marks how the United States has repeatedly failed to take action to reduce the worst effects of climate change. The Supreme Court’s climate decision, explained

James Brien

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