Energy and policy expert Julie McNamara explains the WV v. EPA court case and the potentially devastating effect it will have on our ability to fight global warming in the U.S.
In this episode
in this episode Colleen and Julie discuss:
- how the EPA works to protect the environment
- the recent Supreme Court ruling on WV v. EPA and its implications for fighting global warming
- how we move forward after this ruling to ensure reductions in global warming emissions
Timing and cues
Interview part 1 (2:27-14:34)
Interview part 2 (15:10-28:13)
Editing: Colleen MacDonald
Additional editing and music: Brian Middleton
Research and writing: Pamela Worth and Cana Tagawa
Executive producer: Rich Hayes
Host: Colleen MacDonald
Colleen: Let’s start today with a pop quiz.
The current Supreme Court majority is:
A) Radical B) Right wing C) Partisan or D) All of the above
I know listeners of the Got Science podcast are incredibly smart, so of course you all correctly chose D. Still, it’s hard to fathom the terrible impact of the court’s recent session. This month and last justices sidelined science in several shocking opinions ranging from reproductive rights to gun violence. But there was one—the decision in West Virginia versus the Environmental Protection Agency—that struck a particularly hard blow for those of us who have dedicated our careers to fighting climate change.
In a 6-3 decision that defied judicial logic, the Supreme Court severely limited the EPA’s ability to regulate carbon pollution from power plants. The court also added a new micromanager, aka itself, to nitpick what the EPA can do, when previously the agency had the authority to set smart standards based on science. And that means beyond all the concerning climate implications, the Supreme Court has now also granted itself kingmaker across a vast array of science-based policymaking, far beyond power plants, far beyond EPA.
If this nesting-doll-of-terrible scares you…well, it should. Thank goodness for my extremely knowledgeable colleague Julie McNamara, the Deputy Policy Director of the Climate and Energy Program at the Union of Concerned Scientists. In today’s conversation Julie explains the impact of the court’s ideologically-motivated decision, what we can do to ensure that the EPA can continue its critical work reducing heat-trapping emissions, and why state efforts to combat climate change are more important than ever.
It may all sound a bit grim, but stay with us through the episode...you’ll be relieved to hear some good old fashioned evidence that it’s not all bad news.
Colleen: Julie, welcome back to the podcast.
Julie: Thanks so much, Colleen. It's great to be here.
Colleen: Yeah, it's really great to have you back. I mean, I think it's safe to say that you live and breathe policy, rules, regulations, all the legislative safeguards that ensure public health and safety, and that combat global warming. That said, today, I want to talk to you about a Supreme Court decision that might not be on the radar of many of our listeners. Can you explain what West Virginia versus the Environmental Protection Agency is all about?
Julie: Yeah, I'd be happy to. And this June, we've seen a raft of eye-catching decisions from the Supreme Court covering a wide range of issues. And I would say that West Virginia versus EPA is right up with them, both in terms of its specific implications, as well as some very concerning issues and threats that it portends. So West Virginia versus EPA, we have to take a couple steps back to understand where it came from. The general question on the table that was brought before the Supreme Court was the nature and scope of EPA's authority to regulate carbon emissions from existing power plants under the Clean Air Act. So effectively, how and how much could the agency do?
The case was complicated. for a number of reasons. One of which was it was surprising that Supreme Court even took this case up at all, because it's based on a rule that was issued under the Obama administration, the Clean Power Plan, dating back to 2015. That rule was stayed by the Supreme Court. And then the Trump administration came in, rescinded that rule and issued its own version of how to regulate emissions from existing power plants. On the final day of the Trump administration, the D.C. Circuit Court said, "This rule is too narrowly considered," and it was sent back to the agency.
And then a number of interest, especially from fossil fuel states, and fossil fuel interests, including coal companies they challenged that Circuit decision. And this ultimately got brought up to the Supreme Court. And that's what we have with West Virginia versus EPA. A question about a rule that is not on the books, because the Biden administration, as soon as it came into office, said, "Well, we'll take the Trump administration rule off the books, and we're going to take our own approach on this." But that wasn't enough for the Supreme Court. They said, "No, we'll take this case." And so that's what we saw the decision on.
Colleen: So they've made a ruling on something that doesn't exist?
Julie: That's right. Because they did rule on this 2015 Clean Power Plan, which was the Obama administration's efforts to regulate carbon emissions from power plants. That rule has been through now multiple administration's reenvisioned, and in fact, there is nothing out there regulating existing power plants right now. But still, the Supreme Court ultimately ruled on the basis of that 2015 version.
Colleen: Wait, let me get this straight, there aren’t any rules currently in place?
Julie: Well, this is such an important point. There are no rules on the books for carbon emissions for existing power plants today. And one of the reasons that's so consequential, one, because these emitters are able to just keep on running. But two, EPA is statutorily obligated to take this on. And this is where we see one of the most pernicious effects of the ongoing legal campaign and fight against these EPA regulations. It's delay, delay of any type of implementation of these rules. Every day of delay is another day we get fossil fuel-fired power plants continuing to generate electricity unabated on the carbon emissions front. And so I think, in some ways, it's hard not to be cynical to see delay as the whole endgame on this line of attack. It's just buy time, buy time, buy time for a coal plant to run another day.
Colleen: So let's step back for a minute so we can all understand how the EPA does its work to ensure clean air, safe water, uncontaminated soil. How do they do their work?
Julie: Yeah, so the Environmental Protection Agency, or EPA, is our nation's...it's the standard bearer for protecting public health and the environment. So it has a range of authorities covering things like making sure our air is clean, our water is clean, toxic chemicals are being minded. It also considers enforcement issues. So once a standard is passed, how are polluters meeting those standards. But it gets complicated fast, because EPA is covered by a range of these different authorities. What we're really focused on today is the Clean Air Act, which first came about in the 1970s, and then later had a series of very significant amendments in the 1990s.
Colleen: And the EPA is granted this authority by Congress because the EPA is staffed with scientists, experts who are keeping up on all of the current science, technology, etc. Is that right?
Julie: That's right. So this is a really important issue. Congress recognized that it does not have the scientific expertise to be the one to set a given pollution threshold, right? They are not scientists there. And they also recognize that this information evolves over time. We get to learn more, we get to know more, technologies evolve. And so you want it to be dynamic [00:10:00] to be able to meet the moment. And so Congress designed the Clean Air Act in a way that really is broad and is flexible, such that they defer to agency expertise to say, "Okay..." Congress will say to EPA, "We know there are these problems. We look to you to develop the best approaches for tackling them." And that deference to agency expertise is so critical. It's one of the great resources in our country, the scientists, we have staffing agencies across the board in our federal government.
Colleen: Does the EPA currently have the authority just to regulate carbon emissions?
Julie: Yes, so this has a long history. But ultimately, in 2007, the Supreme Court decided in Massachusetts verse EPA, a really important landmark Supreme Court decision, that EPA did have the authority to regulate greenhouse gas emissions as a pollutant. Following, EPA went through a range of processes, both to show that greenhouse gas pollutants could endanger public health, and it looked to show that specific sources caused or contributed to those concerning impact. And that's how we came to arrive at both vehicle standards to regulate carbon emissions, and then eventually power plant standards. This has since been backed up by numerous additional court decisions. And so EPA does have the statutory authority to regulate greenhouse gas emissions.
Now, when West Virginia versus EPA came to the docket, there was significant concern that although this was...the statutory authority had been affirmed and reaffirmed multiple times, it was still possible that it could be struck down here, because we've seen quite activist decisions coming out of this court. And considering why it may have been taken up, this was one underlying concern. And especially when we consider the Dobbs decision, the question of how much does precedent matter. But at the end of the day, the West Virginia versus EPA decision did not undermine EPA's authority to regulate greenhouse gas emissions. It maintained it, it acknowledged that it recognized it. And so what the decision hinged on, or really gave additional insights into was how EPA can regulate greenhouse gas emissions, not whether.
Colleen: Let’s talk about the ruling. I just came down and it was not good news. So what did the Supreme Court decide?
Julie: After the little bout of relief that EPA maintained its greenhouse gas authorities, it was all downhill from there. And in ways that are pretty concerning. in a 6-3 majority, the Supreme Court ruled that ultimately EPA has limited authority in how it regulates greenhouse gas emissions from power plants. So it's stuck to one section, section 111 of the Clean Air Act. It was narrow in that regard. But it said that...you know, I had been speaking previously about the flexibility that Congress empowered EPA with. Well, the Supreme Court said, "No, the way that the Obama administration had interpreted that flexibility, the decree to which it had kind of employed that flexibility went too far. And instead, EPA must be more constrained in its approach."
And this is...you know, what this really comes down to, the way that the majority arrived at its decision was saying they used a legal doctrine that's largely floated around, you know, in kind of theoretical circles, but was invoked here explicitly, called the major questions doctrine. And what came about was effectively the majority said, "For issues with vast political or economic significance, we must look to Congress to be explicit in what an agency has to do. We cannot allow an agency to interpret for itself how best to approach these issues for these so called major questions." This had never been brought to the table before.
Now, the majority opinion did say, they cited a several prior cases that they said aligned with this general theory. But this was the first of them specifically invoking it. This is really concerning, because, that flexibility and that deference to agencies is so important. Congress simply does not have the expertise, nor the time. And at this point, the functionality to issue rules on every major issue that we're facing today from climate, to public health, to all types of regulations, nor to update them once new technologies emerge, or once a new study comes out about public health. So they look to the agencies to do that. They look to EPA to do that.
What this major questions doctrine says is, "Well, that's not good enough. We need Congress to be explicit." And I will say that I think what's most concerning about this ruling is, there's a significant implication for climate, which we can get into. But there's also what this major questions doctrine portends, because what it ultimately does is it puts the Supreme Court in the position of policymaker. It says, "We will be the judge of whether an issue is, = significant enough." They don't lay out any framework, any decision-making framework, but, "We'll be the decider of whether something is significant enough that it cannot be left up to agency expertise, it must go back to Congress." And that allows for the court to selectively decide, and somewhat arbitrarily, at least based on what we know so far, when this would become an issue, and when they might invoke it again.
Colleen: Is there any way to turn this ruling around?
Julie: Well, I think one of the things that's really concerning about it is, on a lot of fronts, no, this is not so much the end of the line. This is not the apex. In fact, this feels like the beginning of a new season of a deregulatory agenda, just taking away powers from the administrative agencies. And that's just a fundamentally different approach than we've seen for a long time, our agencies do such important work around the country on so many different issues. And this would start yanking power back from them.
Now, of course, we can find workarounds on so many different issues. And we will, right? That's the fight. The fight will be to find the workarounds. But you have to acknowledge that finding workarounds takes time. It takes multiple efforts for every issue to find some new approach. The number one thing that, animates the climate conversation right now is a lack of time. It's a lack of time to get on track. And what this does is slow things down.
Colleen: So Julie, I'm feeling now like I might want to just scream into a pillow. Let's talk about some of the actions/solutions moving forward.
Julie: Sure. So first, we have EPA. It's important to remember, again, that this decision did not take away EPA's authority to act which means, in fact, it's obligated to act. So we'll be pushing for the agency to be implementing the strongest standards it can for existing coal-fired power plants, and natural gas-fired power plants, as well as new fossil fuel-fired power plants, which will really just be gas plants. And it won't just be us. Of course, we're part of a large coalition of people pushing for change. But Administrator Regan, the head of the EPA, himself came out in the aftermath of this decision and said, "We're going to continue to push as far as we can with the authority that we have." And so we know that the EPA is working on this, and will be pushing. And we do believe that there is still quite significant room to reduce emissions just within the authority they retain. It's bad, but it's not impossible.
Colleen: So what is the timeframe on that? How quickly or what sorts of change will begin to happen?
Julie: So this is an important question. There's a difference between standards for new power plants and existing power plants. For new power plants, those rules actually enter into effect once the rule has been promulgated. It goes through a proposal and finalization process, but they enter into force as soon as that finalization has occurred. You know we already have on the books regulations for new fossil fuel power plants, the catch is they’re quite weak. So we'll definitely be pushing for those to be as strong as possible. When it comes to existing power plants, and that's what this whole Supreme Court case was about, those rules, we expect them to first be proposed in the spring of 2023. They'll then be, I'm sure, a robust public comment process, where people will be able to weigh in, to review that proposal, to look at the underlying data the agency relied on, the analysis they conducted.
And I know in that area, we'll be pushing hard to see as strong a rule as possible come through. And then ultimately, the rule will be finalized. And that can take some time, especially for something as substantive as this, you know, maybe not till the end of 2023, or even into 2024. And then you allow a timeline for actual implementation for states to develop their implementation plans, and then for utilities to actually meet those plans. So this can stretch out for quite a long time, which is, again, one of the worst implications is that we're introducing a whole new round of delay when we simply do not have time.
And then there's this final element of delay that I do want to be clear about. While the Supreme Court decision did lend some clarity on what the courts now think the agency cannot do, it was not crystal clear on exactly what the agency can do. And it remains a significant concern that this playbook now being taken up by fossil fuel companies and politicians representing fossil fuel interests and supported by fossil fuel interests in numerous states to continue to take these proposals, these rules to court again, and again, and again.
Colleen: So, it's extremely maddening. We just don’t have time for these delays. And to add salt to the wound, Senator Manchin has just backed out of the budget reconciliation process, just as we were looking to Congress to finally take action. Julie, what’s your analysis of this current situation?
Julie: That’s right Colleen. This has been a very challenging few weeks for climate. Of course, we know that the federal government is critically important, but it was never going to be working alone. It had to be working in concert with Congress. And congress has such an important role to play here to advance investments and things like tax credits and policies that smooth the wheels such that we can propel the clean energy transition forward, propel climate policy, in ways that we can’t simply look to regulations for, nor should we look to regulations for, and so for over the past year the Democrats have been advancing a budget reconciliation proposal which means that budget reconciliation effectively allows for a 50 vote approach to policy. And it’s really when its about something that affects investments and taxes.
So a lot of this strategy was around how do we lower the cost and lower the hurdles to getting clean energy technologies, climate policies, environmental justice, manufacturing, clean energy jobs, how do we make all of that easier to get out in the field. Now this has been a long negotiation, there’s been a lot has shifted over the past year and a central figure of this was Senator Joe Manchin from West Virginia who has repeatedly raised concerns but also continued to come back to the table acknowledging the importance of these policies at the end of the day.
But just two weeks after the Supreme Court decision, we’ve now had Senator Manchin effectively pull out of the reconciliation process when it comes to these clean energy policies. This has enormous consequences when we think about the path forward, ‘cause there is no getting around the fact that these investments, these policies are so critical, so critical to climate progress. They make regulations easier to implement. They bring the cost down on all the clean energy technologies we are trying to push. And now it is in doubt. Now it’s in a place where we’re not sure what the next step is in Congress. We know these policies need to move and yet the best path forward for them has just been shut. So we still think, there are still a few weeks until the end of September. We know that there is a chance. The door is no fully slammed shut. But if we have history to go on, it’s not looking good for climate when Senator Manchin is expressing his concerns here and his reservations and saying he won’t move forward.
So what it really means is that we’re back to looking at the agency actions, we’re back to looking at administration actions. President Biden has said he’s recommitting his administration to climate action, but we can’t do it alone. We need these policies to really get the job done. And so, we’ll continue to look beyond reconciliation to things like tax extender packages and ways to potentially in end of year budgets to see if we still can move thes things forward. Because the truth is, there just is no alternative. We have to get this done. The path to getting it done has just become a lot harder, senselessly, and needlessly so. So many people will be paying the price for it. But at the end of the day, it still needs to move.
Colleen: So Julie, I just want to make sure that I have this right. So this larger reconciliation process has been thwarted and now we have to look to smaller, more piecemeal solutions and that’s just going to again take a lot more time and it will delay action.
Julie: That’s right. This is just another delay. Everything will become costlier, everything will be slower, everything will be harder to achieve. And I can’t say strongly enough that we had a path forward here. These were policies that were going to benefit people all across the country that were going to help develop new jobs, new domestic manufacturing capacities, lower the cost of energy. These were all good and proven things, and we had a path forward and now it’s been cast into doubt, and as a result, the cost will go up, time will be delayed, and people will pay the price.
Colleen: Where is the rest of Congress in this process?
Julie: I’m so glad you raised that Colleen, because it’s really important to note this isn’t just about a single senator. In fact the problem is a majority of senators—there are 51 that are now standing in the way of climate progress, and we have to acknowledge that and reckon with that. People all across the country are staring down a summer of extreme heat, precipitation, drought. We’re seeing this unbelievable, staggering toll of climate impacts already. People are saying they want climate policy, that they know that not enough being done in the federal government and by the federal government. And yet we see 51 senators standing in the way. And I think we really need to think about what the implications of that are and how we move forward because the fact is, people want change.
Colleen: Well Julie, I can hear the frustration in your voice and I’m with you on that. Is there any potentially good news on the horizon, I’ll take anything.
Colleen: Is there any more potentially good news? Give me anything!
Julie: There is more. Because, you know, beyond just this budget reconciliation package and Congress, We've seen some pretty incredible examples here. We have seen state after state stepping up to set clean energy policies that require ever higher levels of clean energy, and ever lower levels of fossil fuel pollution.
Now, we've seen that in the power sector, we've seen a number of states coming together on vehicle regulations to help drive forward electric vehicle uptake. We're also seeing it in the local level with deployment of rooftop solar, and how to have more distributed clean energy resources available to people at the local level. These are all things that are green shoots on the way to progress, and something that we should be feeling positive about, and yet we cannot oversell. We have a long way to go. And this is progress, but it's not the solution. So it's really figuring out how do we build on this progress to keep driving change to help motivate broader, nationwide action, because there's simply some things that have to come from a federal level to ensure that we have the whole of government approach, all states, all emitters that are being held accountable to the climate crisis, to really drive forward change at the pace that we need.
Colleen: And the other positive news, despite what’s happening at the federal level, is the continued growth of clean, renewable energy, right?
Julie: That's right. it's renewable after renewable after renewable that's lined up to jump on line and get into the electricity system. And with every renewable resource that we deploy, that's less fossil fuel being combusted, because renewables, once they're up, they're effectively free to run. And so they will outbid fossil fuels, which means less gas, less coal. That is an undeniably good story.
We've also seen, you know, this broader uptake in support from across the country, in all types of communities, recognizing the benefits that renewables can bring at the local level. So we're seeing local budgets being supported by the investment dollars of new renewable resources being invested, right? Being constructed the jobs, and then the tax benefits, this burgeoning resource and really economic benefit. That's why we're seeing so many communities saying, "How do we get in on this, too?" So that's another major point of progress.
So these are all ways that I see renewables showing up in a really great way, and proving their worth, not just when it comes to economics, not just when it comes to reliability, but across the board that there are so many benefits here. And so I think ultimately, we know that the tailwinds are with clean energy. The question is, can we deploy it fast enough? Can we make sure that we're transitioning fast enough, because ultimately, we can't afford to miss those climate targets. We have to get back on track.
Colleen: Excellent. Well, thanks so much for joining me, this has been, well, you know, a challenging conversation, but also encouraging when we talk about renewables.
Julie: I appreciate it, Colleen. Thanks for taking the time.