In this opinion piece, Good Mood Dudes founder Dr. Nicholas Chartres provides his view on this article: The US supreme court has declared war on the Earth’s future 

 

As an academic working in US environmental science policy, and a father of three children, I was deeply concerned by the Supreme Court of the United States (SCOTUS) opinion in West Virginia vs. EPA that will significantly weaken the US Environmental Protection Agency’s (US EPA) authority to regulate carbon dioxide emissions from power plants (the second-largest source of planet-warming pollution). Let me explain why.

The Case

The original case is about the Clean Power Plan that sought to combat climate change by capping carbon pollution from power plants, a rule developed during the Obama administration. That would have allowed US EPA to use the most effective regulatory tools to address greenhouse gas emissions from power plants – a shift from coal to energy sources that produce fewer emissions. However, in an unprecedented action, the plan was put on hold in 2016 due to pressure from the coal industry.

Congress granted US EPA authority to regulate toxic pollutants through laws like the Clean Air Act (CAA) and Clean Water Act (CWA), which have led to vast improvements in the air and water quality in the US. Such authorities granted by Congress are critical as it gives an expert agency like US EPA the power to address significant and quickly evolving environmental health issues, as and when they arise.

SCOTUS was called to rule on whether the CAA allows US EPA to issue nationwide regulations over the power sector or if the Agency should be limited to regulating changes at individual power plants.

The Court Ruling

In a 6-3 opinion, consisting of the recent conservative Justice appointments made under the Trump Administration, SCOTUS sided with West Virginia and the coal industry in adopting a narrow interpretation of the CAA and rejected the idea that US EPA has the authority to regulate greenhouse gas (GHG) emissions.

SCOTUS ruled that if Congress wanted to give an administrative agency (like EPA) the power to make “decisions of vast economic and political significance,” it must explicitly state this. It did so by applying a doctrine it enshrined into the case law, the “major questions doctrine”. So if the court thinks an agency is overreaching in future cases it can strike down any manner of policies. This reasoning is a concerning departure from traditionally held deference to federal agencies to regulate and develop rules based on their expertise.

In the dissent, Justice Elena Kagan writes “Whatever else this Court may know about, it does not have a clue about how to address climate change…The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”

Why I am so concerned

The precedence this ruling sets is deeply concerning as certain rulemakings across federal agencies like US EPA (along with the financial sector, health care and others) will now need to rely on clear legislative authority to withstand legal challenges, but with a narrowly divided House and Senate, which is in gridlock, these actions seem unlikely.

The most troubling thing for my children and others is that to cut GHG emissions by 50% by 2030 to prevent the catastrophic effects of climate change, we need the US government to have every policy tool at its disposal. Historically they have been the largest contributor to GHG in our atmosphere, and they are now number two only to China. So what they do really matters. This SCOTUS decision now takes one of the most important tools away and has the potential to undermine all federal authority and agency power.

Finally, this damaging court decision once again makes clear the importance of efforts to expose industry tactics and influence on the judicial, executive, and legislative branches of government.

 

Dr Nicholas Chartres is the Director of Science & Policy at the University of California, San Francisco working with the Program of Reproductive Health and the Environment. His work focuses on US federal chemical policy and regulation.

Nick received his PhD from The University of Sydney, where his thesis examined ways to reduce bias in public health guidelines, including the primary studies that are used in our national Dietary Guidelines. Nick also has a Masters in Nutrition.