What has the Supreme Court just done to the climate crisis battle?

The ruling was a win for a coordinated and years-long conservative campaign, with powerful financial backers, against the so-called ‘administrative state’

After a series of rulings on abortion, gun control, and religious expression that have upended established norms of American life, the US Supreme Court has delivered a decision that created a serious roadblock to ambitious, and critical, climate action.

In the final hours before breaking for summer recess, the court’s conservative majority ruled 6-3 in the lesser-known but hugely consequential case, West Virginia v Environmental Protection Agency (EPA).

In a significant win for the plaintiffs – 19 Republican-leaning states and a handful of fossil fuel allies led by West Virginia – the court ruled that Congress did not explicitly empower the EPA to issue sweeping regulations under a part of landmark 1970 Clean Air Act known as Section 111.

It is also a notch in the belt for the coordinated and years-long conservative campaign, with powerful financial backers, against the so-called ‘administrative state’ – a landscape which, in their view, assigns too much power to unelected bureaucrats to create rules.

Backlash to Thursday’s ruling – which was supported by three justices appointed during the Trump administration – came from a broad cross-section of opponents, including utility companies, public officials and activists.

Heather Zichal, CEO of the American Clean Power Association (ACP), wrote that her group was “deeply disappointed that the Supreme Court has hamstrung EPA’s power to reduce the country’s greenhouse gas emissions and help fight climate change”.

The Edison Electric Institute, an association of US shareholder-owned electric companies, who had filed an amicus brief in support of the environmental agency, said they “remain committed to working with [EPA Director Michael Regan] and [the EPA] as they undertake a new rulemaking that is consistent with the court’s decision”.

“Today’s announcement represents a major step back in our fight to keep our communities safe from the devastating effects of the climate crisis,” also read a statement from the National League of Cities and US Conference of Mayors, non-partisan organisations who also filed an amicus brief alongside the EPA.

While the loss was significant, it was not the death blow to environmental progress that had been feared. The EPA still has general authority to regulate greenhouse gases as sources of pollution, as was decided by a 2007 case, Massachusetts v EPA, and the ruling will lead to no immediate changes in federal policy.

But in the short-term, America’s ability to curb its carbon footprint is in jeopardy.

President Joe Biden is committed to aggressive action on the ever-worsening climate crisis, and promised the world last year that he would slash domestic emissions in half by 2030. As part of meeting that goal is a plan to decarbonise the US electric grid by 2035.

Jason Rylander, senior attorney, for the non-profit Center for Biological Diversity, described the Scotus ruling as a “bad and unnecessary decision”.

“​​The court should not have taken this case and injected itself into the details of climate policy. But here we are,” he told The Independent.

While he described the conservative majority ruling as “a coal plant protection opinion”, he also noted that the decision was narrow, and really only affected Section 111 of the Clean Air Act.

“It seems clear that [EPA] can regulate power plants at the source to some degree, and the contours of EPA’s power under that program appear to be left to future decisions,” he added.

“There’s a lot more to the Clean Air Act, and EPA still has a lot of ability to address greenhouse gas pollution through other portions of statute in ways that may be more effective.”

Jay Austin, a senior attorney at the Environmental Law Institute, also told The Independent that the EPA’s challenge would now be “to try to figure out what other routes it might have under the Clean Air Act to get at this problem”.

In theory, Congress could pass a law to explicitly reduce emissions – which would “trump everything”, Mr Austin said – though that option appears somewhat unlikely given the bitterly divided political climate and many pivotal midterm battles looming in November.

For Mr Rylander, the more “ominous” part of the opinion was that for what appeared to be the first time, the Supreme Court endorsed the “major questions doctrine” – a legal theory intended to sharply limit agency power, where Congress has not authorized specific actions.

“That doctrine has the potential to turn federal environmental, health and safety law on its head, forcing Congress to inject itself into the details of standard-setting which, traditionally, it has left to expert agencies,” he added.

The Supreme Court ruling only ended up focusing on the specific question at hand, Mr Austin said, but may have set the stage for future rulings of a similar ilk.

“They loaded the gun, but are not pointing it in other directions right now, for the moment.”

But while Mr Rylander conceded that the ruling was a “sharp blow”, he added that “by no means is this decision game over for climate policy”.

Along with alternative, climate-fighting pathways under the legally capacious and powerful Clean Air Act, climate scientists and academics this month petitioned the EPA to regulate emissions under the Toxic Substances and Control Act, describing the pollutants as human and environmental health risks.

Beyond the EPA, the Biden administration has considerable authority at its disposal to tackle climate change and accelerate the transition to clean energy, Mr Rylander noted, as do individual states.

The Center for Biological Diversity, and others, have called on President Biden to take other sweeping measures such as banning fossil fuel leases, phasing out oil and gas production on federal lands and waters; halting approvals of new fossil fuel infrastructure permits; banning import and export of crude oil; and expanding the Defense Production Act to include electric transportation to boost electric vehicles, high speed rail charging stations. 

“We have a lot of options at our disposal, and we need to start using them all to get the United States in a position where we can meet our climate targets for the world,” he added.

The Supreme Court’s 6-3 conservative majority has already shifted to the right on issues, and favoring less government oversight. 

In a seismic ruling last Friday, the court struck down landmark constitutional protections for abortion that could have life-threatening and life-changing consequences for millions of women in the US, and sparked a flurry of legal action across states.

The six conservative justices ruled in favour of a Mississippi law that outlaws abortion at 15 weeks of pregnancy, and used the opportunity to also overturn key precedents established by the 1973 decision in Roe v Wade as well as an affirming decision in 1992’s Planned Parenthood v Casey.

“With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent,” read the dissenting opinion from liberal justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

The court also recently ruled 6-3 along conservative lines in favour of protecting prayers by public high school coaches during matches on the field and struck a New York law which restricting gun-carrying rights.