US Supreme Court says EPA can’t regulate carbon pollution under Clean Air Act

In a move that by now surprises absolutely no one, the U.S. Supreme Court today ruled that the Environmental Protection Agency does not have the authority to regulate carbon pollution from existing power plants.

The 6-3 decision, with the three liberal justices dissenting, makes it increasingly likely that an act of Congress will be required to create regulations to rein in planet-warming emissions.

“Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan,” Chief Justice John Roberts wrote in the majority opinion, which was joined by the five other conservative justices on the bench.

“On EPA’s view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy,” Roberts wrote. “There is little reason to think Congress did so.” In instances like this, he said, “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

The dissenting justices did not agree with Roberts’ assessment, arguing instead that the EPA has clear authority in this case under the Clean Air Act.

“Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil fuel-fired power plants,” Justice Elena Kagan wrote in the dissenting opinion. “Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’ Carbon dioxide and other greenhouse gases fit that description.”

The case originated when the state of West Virginia sued the EPA, challenging its authority to regulate carbon dioxide emissions from existing coal- and natural-gas-fired power plants under the Clean Power Plan, a 2015 Obama administration policy. The rule would have required states to implement their own plans to cut carbon pollution starting this year before reaching full force in 2030. It was projected to cut carbon emissions by 32%. 

The Obama EPA estimated that the rule would create $26 billion to $45 billion in net benefits, including $14 billion to $34 billion in health benefits.

The Trump administration sought to gut the rule, mostly by changing how the agency assessed the health impacts of pollution-mitigating policies. That change was rejected in the D.C. Circuit Court of Appeals, though the court did not reinstate the Clean Power Plan itself.

The Biden administration hasn’t sought to bring back the Clean Power Plan, either, but instead create its own rules. This latest Supreme Court decision will no doubt throw a wrench into those plans.

In her dissent, Kagan pointed to the potential fallout created by the majority’s decision. “Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is ‘unequivocal that human influence’—in particular, the emission of greenhouse gases like carbon dioxide—‘has warmed the atmosphere, ocean and land,’” Kagan wrote, citing the U.N. Intergovernmental Panel on Climate Change.

“If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean,” she said. Heat waves and severe weather could force mass migrations, civil unrest, and the failure of governments around the world. By the end of the century, she said, 4.6 million people could die as a result of climate change-related causes.