DENVER — On Thursday, the U.S. Supreme Court handed down a ruling that significantly limits the Environmental Protection Agency's ability to regulate greenhouse gas emissions from power plants.
Justices ruled 6-3 that the Clean Air Act does not give the agency broad regulatory powers for reducing emissions. Instead, the majority opinion said Congress must specifically authorize agencies to make these types of rulings that are considered transformational to the economy.
“In some ways, they are turning to Congress to be more active, despite the fact that everybody knows Congress is not really capable of doing that,” said Jonathan Skinner-Thompson, a law professor at the University of Colorado in Boulder.
Skinner-Thompson knows a lot about the federal clean energy rules because he helped craft them under both the Obama and Trump administrations. Before accepting a job with CU, Skinnter-Thompson worked for the EPA in the Office of General Counsel in the Air and Radiation Law Office, which handed all of the agencies air regulations.
“I actually helped draft the legal interpretation that was the key part of the Clean Power Plan. I was detailed to the Department of Justice to help defend it,” he said.
He also wrote part of the brief in the DC Circuit and was assigned to the Solicitor General’s Office in its defense.
Under the Obama administration, the Clean Power Plan took a broad interpretation of Section 111 of the Clean Air Act and authorized the EPA to determine the best systems of emission reduction. It’s broad, somewhat vague language.
“The CPP interpreted that phrase — the system of emission reduction — to mean anything, any measures that power plants, that their owners or operators can do to reduce emissions,” Skinner-Thompson said.
It did that with a three-part plan — heat rate improvements to make power plants run more efficiently, shifting power generation away from coal power plants to gas-fired plants and then eventually shift away from all fossil fuel-fired power plants to renewable energy.
Under that framework, the EPA came up with emissions reduction targets for states to meet, and it accommodated a cap-and-trade system. States could meet their carbon limits requirements by relying less on coal plants.
When the Trump administration took over, it repealed the Obama-era rules — though they had already been put on hold by the Supreme Court in 2016 — and instituted a much narrower set of rules.
Because he was a career attorney, Skinner-Thompson helped repeal CPP and then craft the Affordable Clean Energy rule.
“It said instead what Section 111 authorizes, what "best system of emission reduction" means is only things that you can do to physically improve the emissions or reduce the emissions at the source. This has been called the fence line argument,” Skinner-Thompson said. “Basically, you can't shift generation away from one coal-fired power plant to a gas-fired power plant or to new renewable energy sources. All you can do is reduce the emissions at the plant itself.”
The Trump administration then decided that the best system for coal-fired plants was to only make them run more efficiently. Critics of the idea argued that can actually increase emissions at those plants.
The Trump administration's interpretation of this ruling was also the subject of a lawsuit from dozens of states and paused by courts. The Biden administration has not yet adopted either approach.
Nevertheless, the justices ruled under the major questions doctrine that no agency can adopt rules to regulate an issue of major national significance without the express approval of Congress. Several conservative justices have spoken out about the unchecked powers of federal agencies. This ruling requires a more narrow view of the Clean Air Act.
However, even without these EPA rules, the country has already exceeded some of the emissions goals set out by the Obama administration, and even moved beyond them.
“You have a lot of these agreements between [public utility commissions] and companies to help clean the electricity generation fleet, and so they're voluntarily moving forward regardless of what's happening at the EPA,” Skinner-Thompson said. “By the time EPA comes out with a new rulemaking, it's possible, at least for most of the power sector, that that's largely moot.”
Congress could decide to allow the EPA to come up with tighter rules around emissions. In the 90s, the agency passed an amendment to the Clean Air Act to establish a cap-and-trade program for power plants to address acid rain, for example. However, with the current gridlock on Capitol Hill, a change in this area is unlikely.
“It is a disappointment. I think for those of us who are hoping that EPA could take aggressive and significant action to address climate change, in particular greenhouse gas emissions, CO2 emissions from power plant, we're not going to see that,” Skinner-Thompson said.
Environmental advocates called the Supreme Court's decision catastrophic and disastrous for the fight against climate change.
“What it means is that Colorado has to find a way to fill in that gap that the EPA is going to leave. The federal government is taking a step back today,” said George Marlin, a Clear Creek County commissioner and the president of Colorado Communities for Climate Action.
Marlin says his area is already seeing the effects of climate change with shorter rafting seasons and greater wildfire risk. The area’s economy relies heavily on tourism. He warns that the issue is not going to fix itself, and that it will take many local and state governments to come together to address the gaps the Supreme Court's decision creates.
However, for states like Colorado that have already passed robust laws aimed at curbing the effects of climate change, little is likely to change with this ruling.
“Colorado has already enacted a number of climate strategies that has its own greenhouse gas map,” said Stan Dempsey, president of the Colorado Mining Association.
Part of those goals include the closure of coal-fired power plants by 2031. Dempsey says those decisions are already well underway and irreversible.
“In Colorado, we are showing the nation how cost savings from clean energy is rapidly reducing pollution, saving people money and creating jobs. Colorado utilities are already on a path to meet or exceed 80% renewable energy by 2030. We are fighting for a cleaner, healthier community,” a statement from Governor Jared Polis said.
Dempsey doesn’t see this Supreme Court case as one about the climate, but one about agency overreach and a legal issue about who can regulate what. He insists that people in his industry are not dancing with joy over the ruling because they are committed to addressing climate issues with policy makers on a state and federal level.
The Supreme Court ruling could have far-reaching impacts on government agencies. For now, the burden is on states to determine how to address the impacts of climate change.