What Comes Next: Supreme Court Limits EPA’s Authority to Regulate Carbon, Highlighting Need for Swift Congressional Action on Reconciliation Bill to Meet Climate Goals

By Gene Grace, ACP General Counsel 

There has been a lot of concern around last week’s Supreme Court ruling in West Virginia v. EPA. Now that the dust has begun to settle, ACP thought we would provide some deeper analysis.  

Heather Zichal, ACP’s CEO, expressed that ACP was “deeply disappointed” with the ruling. Here’s why: The ruling severely limits the power Congress gave the Environmental Protection Agency (EPA) to respond to the most pressing challenge of our time – climate change.

With the Clean Air Act, Congress clearly charged EPA with addressing the catastrophic harms from carbon emissions, including through regulation of fossil fuel-fired power plants. Today, those electricity-producing plants are responsible for about one quarter of the nation’s greenhouse gas emissions. Curbing that output is a necessary part of any effective approach for addressing climate change. 

Even though the stakes could not be higher for addressing climate change, the new limits the Supreme Court’s decision puts on EPA’s authority will impede the agency’s ability to do that job. Though no one can seriously dispute that operational improvements at the individual plant level will lead to only small emission reductions, the Court puts EPA in the box of being limited to that tool. This ignores the fact that generation shifting – running heavily polluting resources less and less polluting resources more – is exactly what fossil fuel-fired plants already do to reduce their carbon emissions and is clearly the “best system” (as required under the Clean Air Act) to ensure such emissions reduction in the power sector.  

Requiring EPA to turn a blind eye to this widely deployed, cost-effective, and readily available system for reducing emissions will certainly make it harder for EPA to identify a system of emission reduction for fossil-fuel fired power plants that meaningfully curbs carbon emissions. 

This Court’s misguided ruling in West Virginia v. EPA also highlights the urgent need for Congress to act now to establish a long-term, predictable national policy framework to put the country on the path to achieving our climate goals. If this nation is serious about addressing climate change before it is too late, the climate and clean energy tax provisions pending in the reconciliation package being negotiated on Capitol Hill will significantly contribute to reducing carbon emissions. If passed, the package would cut emissions in half by 2030 while achieving real energy independence, supporting good jobs, and lowering energy costs for consumers. 

We are running out of options and time. Congress cannot afford to let this once-in-a-generation opportunity slip by. 

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