In the News

In a blow to the fight against climate change, the Supreme Court today limited how the nation’s main anti-air pollution law can be used to reduce carbon dioxide emissions from power plants. Richard Revesz, an environmental expert at the New York University School of Law, called the decision “a significant setback for environmental protection and public health safeguards.” But Revesz said in a statement that the EPA still has authority to address greenhouse gas emissions from the power sector. 

KALW Radio will discuss the Supreme Court’s ruling on EPA’s power to force power plants to cut down their carbon pollution: how will this ruling impact President Biden’s climate agenda, including plans to decarbonize the energy grid by 2035? Jack Lienke, regulatory policy director of the Institute for Policy Integrity, will be a speaker.

Climate regulation could be the next Democratic priority to fall to the Supreme Court. West Virginia argued the EPA doesn’t have the authority to set standards that encompass an entire sector of the energy industry and, rather, is limited to only setting restrictions on individual power plants. Max Sarinsky, a senior attorney at the Institute for Policy Integrity, however, said there are some power plant-specific regulations that can be effective at fighting climate change. “Source-specific regulations like heat rate improvements, co-firing, carbon capture or some combination of various approaches — they can be quite environmentally effective,” Sarinsky said. 

The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming. But legal experts say that the Republican attorneys general and their allies have taken such strategies to a new level, in their funding and their tactics. “They’ve created out of whole cloth a new approach to litigating environmental regulations, and they’ve found sympathetic judges,” said Richard Revesz, a professor of environmental law at New York University.

The impacts of climate change are often described as small changes in temperature or massive emissions, which doesn’t always make sense to people, said Peter Howard, an economist at the Institute for Policy Integrity. “Putting it in dollar terms helps the public really understand what the magnitude of the climate costs are.” 

“​​The story of climate policy in the US, generally, is one of missed opportunities and unjustifiable delay,” said Jack Lienke, author of the book Struggling for Air: Power Plants and the “War on Coal.” Many other issues may have seemed more pressing, or simply better understood. As Lienke writes in Struggling for Air, “At a time when Americans were still dying somewhat regularly in acute, inversion-related pollution episodes, it is unsurprising that legislators were more concerned with the known harms of sulfur dioxide and carbon monoxide than the uncertain, seemingly distant threat of climate change.”

The Supreme Court has rejected an emergency request to block the Biden administration’s use of a key climate metric, effectively preserving federal agencies’ ability to account for the costs of heat-trapping emissions — at least for the time being. Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University School of Law, said he was not surprised by the high court’s decision. The institute had filed a friend of the court brief in the appeals court, arguing that the administration’s metric was based on research and evidence. He added that the district court “badly misapplied bedrock constitutional principles about the role of federal courts,” and its injunction was swiftly lifted. Sarinsky said the ruling allows federal agencies to continue to apply available climate damage valuations to help write policy (Climatewire, May 26).

Rachel Rothschild, a legal fellow with the Institute for Policy Integrity, said fossil fuel companies are sure to sue if the state enacts the legislation. Rothschild’s legal research provided the basis for the proposed legislation, and she says one major legal question likely to arise in court is jurisdictional. In a memo to state legislators, Rothschild cites various cases in the hazardous waste context that she says suggest “that a state can exercise jurisdiction over a polluter simply because it discharged harmful substances into the forum state” and can therefore aid New York’s ability to assert jurisdiction over foreign or out of state companies.

The impact of removing the social cost of greenhouse gas figures from the Biden administration’s arsenal might not hobble future climate rules. Losing the social cost of carbon “would complicate things,” said Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University Law School. “But it would not be fatal. Climate regulation would continue.”

The growing threat of power outages fueled by extreme weather calls for new approaches to grid oversight, the head of the Federal Energy Regulatory Commission said yesterday, adding that utilities and grid operators should “think differently.” Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law, said FERC should “deeply scrutinize” the emissions estimates provided by project applicants, even in cases where a new gas project would replace a higher-emitting coal power plant. In general, many coal plants across the United States are closing due to market changes, she added.