The Supreme Court could again stall action on climate change as it weighs whether to pause new pollution regulations for coal-fired power plants.
The Environmental Protection Agency (EPA) rules finalized this year The goal is to reduce greenhouse gas emissions from coal plants. But Republican states and industry groups are pushing back. Challenging the EPA in Court and have asked SCOTUS to intervene and prevent the rules from being implemented while they clash.
The application is now in the so-called “Supreme Court”.shadow file—which means the Supreme Court can essentially issue a stay on the rules at will. The court has already made it much harder for federal agencies to regulate industry since Donald Trump packed it with conservative-leaning judges. This is another opportunity to dismantle the EPA’s efforts to limit climate-changing pollution.
“Just a few years ago I would have considered this kind of request ridiculous.”
“Just a few years ago I would have found this kind of request ridiculous, but given the way this court operates, I don’t laugh at it anymore,” says Sambhav Sankar, senior vice president of programs at the nonprofit environmental law organization Earthjustice.
The rules are a cornerstone of the Biden administration's efforts to comply climate objectives established under the Paris Agreement. Require coal plants They are expected to continue operating for at least 15 years to reduce their climate pollution by 90 percent. Coal is the dirtiest fossil fuel, generating more planet-warming carbon dioxide when burned than oil or gas.
When the EPA finalized the plan in April, it was arguably only a partial victory for environmental and health advocates. The rules had to comply with the Supreme Court's 2022 decision on West Virginia v. Environmental Protection Agency. It was a monumental opinion that strengthened the “Important Questions” doctrine, the idea that federal agencies should not have the authority to make decisions on matters of major national importance without Congress passing explicit legislation allowing the agency to do so. The decision meant that the EPA would not be able to determine whether the United States gets its electricity from fossil fuels or from cleaner energy sources like wind and solar.
As a result, the EPA’s plans to control greenhouse gas emissions allow fossil fuel-burning power plants to keep operating as long as they install technologies that capture carbon dioxide emissions. Fossil fuel companies have championed carbon capture and storage as a way to fight climate change without having to give up coal, oil or gas. But relying on carbon capture disappoints health and environmental advocates who hoped a transition to renewable energy would fight climate change. and pressure utilities to phase out fossil fuel plants that spew soot and other pollutants into nearby neighborhoods.
Now, the industry argues that carbon capture and storage (CCS) technologies aren't even ready to help combat climate change, at least not to the extent the EPA says is feasible in its rules for power plants. Since July, trade groups have been representing utilities and mining companies and a handful of red states, led by W.V. and Ohiohave filed petitions asking the Supreme Court to issue a stay of the EPA's new rules for CO2 emissions (as well as Separate standards for hazardous pollutants, including mercury). United States Court of Appeals for the District of Columbia Circuit previously rejected issue a suspension.
The petitioners argue that capturing 90 percent of CO2 is not yet an achievable goal, that the technology has not been proven at that scale, and that there are no pipelines to safely transport and store the greenhouse gas once it is captured.
“Without a way to comply with the 90% CCS system, the Standard requires operators to shift electricity generation,” the National Association of Rural Electric Cooperatives states in its application for a stay. “EPA is once again attempting to transform the energy sector by forcing a shift in electricity generation toward its preferred sources.” They are essentially invoking the important questions doctrine again to challenge the new rules.
The Biden administration defended the EPA's rules in a answer The EPA filed a lawsuit with the Supreme Court this week, claiming that the agency has vetted the technology and set achievable carbon capture goals. The case “does not involve the kind of fundamental issue of statutory interpretation that might warrant intervention by this Court,” the EPA argues. And it notes that a federal appeals court decided not to issue a stay on the matter last month, in a decision which says the litigants have not shown that they will be able to successfully challenge the rule’s merits, nor that the case involves a “substantial issue.” In addition, the deadlines for complying with the rules do not begin to run until 2030 or 2032, making it difficult for the petitioners to show that they would suffer “irreparable harm” without a stay.
However, the groups have since asked the Supreme Court to issue a stay through its emergency docket, or shadow docket. The emergency docket, once reserved for extremely urgent matters like suspensions of executions, is now packed with requests to pause environmental regulations. It is an expedited process, allowing the court to issue decisions without much information on the issue or hearing oral arguments on the case.
“Many lawyers and others find it deeply disturbing.”
“A lot of lawyers and others find it deeply disturbing,” says Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia University. “The Supreme Court can do something of enormous importance without having all the information at its disposal.”
It's a trend that has grown since 2016, when the Supreme Court issued a surprise stay of the Obama administration's attempt to regulate greenhouse gas emissions from power plants. The Obama-era rules never went into effect and were eventually repealed. The Trump administration reversed it.
Now, history could repeat itself. Donald Trump has… pledged to scrap power plant emissions rules Once again, in the midst of a presidential campaign, the Supreme Court can decide at any time whether to grant the suspension. Its decision could potentially influence the case. The U.S. Court of Appeals for the D.C. Circuit is still considering whether the rules It should be felled in total.
The Supreme Court's decision on the stay could also influence new rules the EPA is still drafting for existing gas-fired power plants, which are a bigger source of electricity than coal in the United States. Those rules They are not expected until after the November elections.giving Trump another chance to change course.
“I think the most important thing will be the outcome of the upcoming election,” Sankar says. Separately, the Supreme Court has stunned the legal community with landmark decisions of late that cripple the EPA’s ability to craft regulations. In June, it struck down a legal doctrine called Chevron deference that previously allowed federal courts to defer to the EPA and other federal agencies in disputes over how to interpret ambiguous language in legislation.
“If the inexperienced and unscientific justices on the Supreme Court once again demonstrate that they are willing to second-guess EPA scientists, then those scientists will understandably become a little more cautious,” Sankar says.
