On Thursday June 30, 2022, the Supreme Court of the United States dealt a major blow to the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions from power plants. The 6-3 ruling in West Virginia v EPA curtailed the agency’s ability to mandate a shift to energy production from renewable sources. The Court determined that Congress has not given the EPA the explicit authority to cap carbon emissions and require power plants to switch to alternative energy under the Clean Air Act. Although the EPA still has the power to regulate greenhouse gas emissions and power plants under the Act, the ruling has limited the methods that it can use to conduct that regulation.
The “Major Questions” Doctrine
The decision has dangerous repercussions for environmental protection and public health, both directly and by exposing other agencies and policies to potential industry-led deregulation. The Court relied on the “major questions” doctrine - which holds that if Congress intended to give a federal agency broad power to make policies that significantly impact the economy, it must clearly state that intent; in this case, shifting energy production from coal to renewable energy. The doctrine creates a concerning precedent that potentially allows justices to cherry-pick what constitutes a “major decision” for the agency in question, and therefore requires additional authority from Congress. This may lead to future Supreme Court attacks on other essential climate, ocean, and coastal policies and regulations, and limits on the ability for agencies to adequately achieve the work they are designed and trained to do. As Justice Kagan stated in her dissent on the ruling: “[t]he Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening.”
More to Come
Next on the chopping block could be EPA’s authority to protect our nation’s clean water. In October, the Supreme Court will hear Sacketts v EPA, a case that challenges the definition of wetlands as national waters allowed to be regulated and protected by federal agencies. Under the Trump administration, the “Dirty Water Rule” threatened to wipe out protections for streams that provide drinking water to tens of millions of people and wetlands that filter pollution but was later thrown out by the courts. The October hearing is an attempt to revive that effort to remove wetlands and waterways that do not flow year-round from protections under the Clean Water Act. If successful, a ruling in favor of the Sacketts would expose the majority of our nation’s already struggling waterways and essential wetlands to additional degradation from infill, development, and pollution- threatening clean water downstream at the beach and destroying important habitat for wildlife.
What it all means for our communities and coastlines
These regulatory rollbacks will limit federal agencies’ ability to protect our health and ensure clean water and clean air, especially for those in communities most at risk. Black, Indigenous and People of Color in frontline communities will be disproportionately impacted and will face an ever-growing threat of air pollution and climate change disasters because of this reckless decision by the Supreme Court.
With this change in regulatory oversight, it is more important now than ever to double down on nature-based solutions especially on our coasts. It is critical that we protect and conserve carbon-storing wetlands, seagrass meadows and mangroves, safeguard coral reefs, and restore coastal dunes to ensure our coastlines are resilient against rising seas and more intense weather patterns. All the while we need to continue to significantly reduce greenhouse gas emissions. These efforts, combined, can help prevent some of the most harmful impacts of climate change and exacerbated water pollution.
Where do we go from here?
The Supreme Court decision demonstrates the importance of action on congressional, state and local levels. Clear and direct laws and policies from Congress will prevent dangerous loopholes and questionable interpretation by the courts. The EPA still has important regulatory power on climate change and our nation’s largest greenhouse gas emitters, but Congress needs to ensure that our nation’s laws clearly ensure that EPA has the power to effectively do its job. State and local policies can also provide additional protections for clean water and climate action, signifying the importance of local grassroots activism and passing proactive policies at the local level.
Surfrider’s network will continue to fight for climate action and coastal protection at the federal, state and local levels. Join us and urge Congress and President Biden to protect our ocean against this significant set-back for our climate.