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U.S. Supreme Court curbs federal power to regulate greenhouse gases, in blow to Biden


U.S. Supreme Court curbs federal power to regulate greenhouse gases, in blow to Biden

Jun 30, 2022 | 1:47 pm ET
By Jacob Fischler
U.S. Supreme Court curbs federal power to regulate greenhouse gases, in blow to Biden
A coal-fired power plant in Romeoville, Illinois. (Scott Olson/Getty Images)

‘A shot across the bow’

But the ruling threatens Biden’s goal, codified in an executive order in December 2021, to reach a zero-carbon electricity sector by 2035, Emily Schilling, a lawyer who heads Holland & Hart’s environmental resources practice group and represented power producers who challenged the rule, said Thursday.

“This rule is a big part of Biden’s drive towards clean energy by 2035,” Schilling said. “Now they are going to get substantially fewer reductions from this type of rulemaking than they had planned.”

The EPA can still regulate greenhouse gas emissions after the ruling, but only by setting standards that are realistic for specific producers to meet without shifting how they generate power — not by mandating an industry-wide shift in generation, Schilling said.

The court majority ruled Thursday that requiring a shift in generation violates the major questions doctrine, a legal theory at the center of the case that Congress must clearly authorize an executive agency to decide an issue of major national political or economic significance.

The court’s finding has major implications across the executive branch, particularly for climate-related action.

“It does hamstring the whole administration in terms of the toolbox that it might have by broadly interpreting various federal statutes that give it authority to address climate change,” Schilling said in an interview.

“This is a bit of a shot across the bow,” she said. The court indicated it would see any effort to aggressively address climate change as beyond an agency’s purview “unless there is a very specific authorization” from Congress.

State power intact

While the decision guts federal authority to require a shift in power sources, state leaders with the U.S. Climate Alliance, a coalition of 21 Democratic and three Republican governors, said they would continue to pursue aggressive emissions standards.

“Thankfully, state authority to curb greenhouse gas emissions has not changed,” co-Chairs Gavin Newsom of California, Kathy Hochul of New York and Jay Inslee of Washington, all Democrats, said in a statement. 

“Today, we reaffirm our commitment to decarbonizing the power sector using our authority at the state level. We will continue moving forward with bold climate action in the states to protect the health and pocketbooks of the American people.”

Clarence Anthony, the leader of the National League of Cities, and U.S. Conference of Mayors head Tom Cochran issued a joint statement calling the decision “a major step back” for local efforts to address climate change.

“Local leaders are on the front lines of battling the climate crisis — but we can’t do it alone,” Anthony and Cochran said. “Many cities, towns and villages will continue to work to reduce greenhouse gas emissions, but today’s decision leaves us working uphill against this threat.”

Nebraska reaction

Nebraska Attorney General Doug Peterson said in a statement, “This case provides clarity about who has the power to decide some of the most important legal issues facing our country today. The Court’s decision makes clear that Congress and the States — not unelected federal bureaucrats — should decide how to manage our nation’s power grid. This is an important decision that reaffirms States’ authority to address vital legal issues for themselves.”

The Omaha Public Power District, which has invested in greener energy sources and has been shifting away from coal and nuclear power to natural gas, wind and solar power, said the utility remains committed to its goal of reaching net-zero carbon production by 2050.

OPPD aims to “reduce our carbon footprint across several pathways including our energy portfolio, internal operations, the community and our customers,” OPPD spokeswoman Jodi Baker said.

“Our efforts are driven by our mission of providing affordable, reliable, environmentally sensitive energy services,” she said.