What to know about the imminent Supreme Court ruling that could doom US climate action

Ruling in favour of plaintiffs could kneecap EPA’s ability to cut emissions in US power sector

After the seismic ruling of the US Supreme Court to overturn Roe v Wade, and strike down 50 years of constitutional abortion protections, the justices are set to imminently decide in another massively consequential, if lesser-known, case.

It is likely that the court will deliver an announcement this week in the case known as West Virginia v Environmental Protection Agency (EPA).

The issue at hand is whether the federal government has the authority to regulate greenhouse gas emissions from existing coal-fired power plants under the 1970 Clean Air Act, but could also impact its ability to tackle the climate crisis more broadly.

President Joe Biden has pledged to take aggressive action on the ever-worsening impacts of rising global heat, and promised to decarbonise the US electric grid by 2035 as part of plans to slash domestic emissions.

Signed in 1970 by Republican president Richard Nixon, the landmark Clean Air Act prevented more than 200,000 premature deaths linked to air pollution in its first 20 years. “From 1990 to 2010, total emissions of the six principal air pollutants decreased by more than 41 per cent,” the EPA also noted.

Should the Supreme Court rule that EPA does not have broad authority to regulate emissions - and issue an expansive ruling in favor of West Virginia - it would “deal an enormous blow to the US’s near- and longer-term emissions reduction goals and, by extension, our planet’s climate,” Dr Kristina Dahl, a senior climate scientist with the non-profit Union of Concerned Scientists, told The Independent in February.

“That would be disastrous,” she wrote in an email. “But such a ruling could also set a dangerous precedent that hampers the authority of federal agencies to responsively develop and modify regulations based on evolving science.

“Taking away federal agencies’ authority would put the health and safety of our air, our water, our food, our bodies, the ecosystems around us, and much more under threat.”

Coal is the dirtiest, most carbon-intensive of fossil fuels. While it generated only 24 per cent of US electricity in 2019, the fossil fuel accounted for about 61 per cent of CO2 emissions in the power sector.

West Virginia remains deeply intertwined with the declining coal industry. The state is leading a group of more than a dozen Republican-lead states and a handfull of fossil fuel companies in the case.

“How we respond to climate change is a pressing issue for our nation, yet some of the paths forward carry serious and disproportionate costs for States and countless other affected parties,” the states wrote in October in urging Supreme Court justices to take the case.

“Continued uncertainty over the scope of EPA’s authority will impose costs we can never recoup.”

The Biden administration strongly objected after the court added it to the docket. EPA administrator Michael Regan tweeted at the time: “Power plant carbon pollution hurts families and communities, and threatens businesses and workers. The Courts have repeatedly upheld EPA’s authority to regulate dangerous power plant carbon pollution.”

The pro-coal plaintiffs want the Biden administration blocked from making industry-wide cuts to emissions using the Clean Air Act. They argue that US Congress did not explicitly empower the EPA to issue sweeping regulations under the legislation.

If the Biden administration loses the case, new legislation would be needed to implement major emission-reduction strategies which appears to be a very slim possibility in a bitterly-divided Congress and ahead of many fraught midterm battles this November.

The Supreme Court’s conservative majority, which includes three appointees of former President Donald Trump, has already shifted to the right on issues, and favoring less government oversight.

Along with cutting down the landmark precedent established in the 1973 ruling in Roe, the 6-3 conservative majority also recently weakened restrictions on gun ownership. On Monday, the court’s majority ruled that a high school football coach who prayed on-field after games was protected by the Constitution, which opponents claimed could lead to “much more coercive prayer” in public schools.