Court hobbles EPA on climate, and its options are limited

Benjamin J. Hulac, CQ-Roll Call on

Published in Political News

WASHINGTON — Since February, when the Supreme Court held oral arguments in a case challenging the EPA’s authority to regulate carbon pollution from power plants, environmental lawyers and climate activists braced for a ruling that tattooed a deep, restrictive swath into the agency’s ability to curb emissions.

The court’s 6-3 ruling, issued Thursday, did limit the EPA’s authority to rein in those emissions, saying the agency did not have sweeping power under the law regulating carbon pollution from utilities. Instead, it stripped EPA’s authority to regulate that pollution under a section of that law known as 111(d).

“It says EPA can’t do generation shifting,” Thomas Lorenzen, partner at Crowell & Moring and co-chair of the firm’s environment and natural resources group, said in an interview, referencing a method the Obama administration pursued to address pollution. “But that’s all it says. On everything else, it’s got running room,” he said. “Given the makeup of this court, this was not necessarily a bad day for EPA.”

To be sure, the court crimped the Biden administration’s options to combat domestic emissions, and the ruling hobbles the agency, chills what regulations federal agencies may propose, and weakens Congress and the executive branch while drawing power into the judiciary, experts said. Still, the EPA has options for addressing climate change.

President Joe Biden said after the ruling he would pursue all legal avenues to forestall climate change and its catastrophic economic and ecological effects.

“We cannot and will not ignore the danger to public health and existential threat the climate crisis poses,” Biden said.


“The science confirms what we all see with our own eyes — the wildfires, droughts, extreme heat, and intense storms are endangering our lives and livelihoods,” he said. “I will take action.”

In response to the ruling, EPA Administrator Michael S. Regan said, “EPA will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.”

The Supreme Court case centered on an Obama-era regulation from the EPA, called the Clean Power Plan, which never went into effect because the court stayed it in 2016, and a Trump-era policy replaced it. (The Trump policy was later struck down.)

While Regan did not specify what options the agency could follow, experts said EPA could use the same statute behind the Clean Power Plan or other sections of the Clean Air Act in new climate regulations.


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