Court is wrong — EPA does have authority it needs
The Supreme Court’s recent ruling against the Environmental Protection Agency will harm billions of people all over the world. The Supreme Court got it wrong in many ways.
First of all, EPA v. West Virginia should have been thrown out. The Supreme Court was itching to argue against overreaching regulation, but there was no such regulation. It imagined the Biden administration might write such a regulation and jumped the gun. In fact, the U.S. Constitution requires that a federal court address a case or a controversy, and this decision addressed neither.
The decision, written for a figment of the justices’ imagination, was based on a new argument they’re calling the “major questions doctrine.” It states that any agency proposing a federal rule significantly affecting a major industry such as power must first receive authorization from Congress. The court wrote that “a decision of such magnitude and consequence rests with Congress itself.” However, Congress already granted authorization to the EPA to regulate the power industry.
The Clean Air Act, which passed 375-1 in 1970, clearly authorized the EPA to regulate harmful pollutants. The act specified six “criteria air pollutants” known in 1970 to cause harm to health, environment and property: particulates, lead, ground-level ozone, sulfur dioxides, nitrous oxides and carbon monoxide.
Carbon dioxide did not make the list because in 1970 it was not recognized as harmful. Yet, realizing other pollutants would need to be added to the list in the future, Congress wrote the act with general authorities to address pollution problems that emerge over time, such as greenhouse gases that cause climate change.
In addition, the authors clearly stated pollutants from new motor vehicles needed to be regulated and the EPA should issue standards for all criteria air pollutants being emitted by new motor vehicles, as they “may reasonably be anticipated to endanger public health or welfare.”
On the basis of that intent, the Supreme Court ruled in 2007 in Massachusetts v. EPA that carbon dioxide did, in fact, qualify as a pollutant under the 1970 language of the Clean Air Act. And in 2013 in Utility Air Regulatory Group v. EPA, the court ruled the Clean Air Act gives the EPA authority to limit greenhouse gas pollution from power plants.
While Congress realized regulations could have an enormous economic impact, representatives at the same time realized not regulating those pollutants could have even more significant impacts. Impacts such as deaths from heat stroke and climate events causing billions of dollars in annual damage to the environment and property. Congress was thus addressing the consequences of the “major question” doctrine. Before the Supreme Court justices again use the “major question” argument against climate regulation, I encourage them to watch the television news.
The ruling states that the EPA cannot issue significant regulation against power plants unless members of Congress add carbon dioxide to the list. Yet this Congress is unlikely to act. Our country is therefore hamstrung in its ability to meet its greenhouse gas reduction commitments, and if the United States fails to meet its goals, other countries will use that excuse to fail also.
Even though significant regulation of power plants is denied, the Biden administration can still take action against individual power plants as well as regulate car emissions. And fortunately, many states recognize reality and are restricting greenhouse gases. Here in New Mexico, we can be proud that our Energy Transition Act is reducing emissions from power plants. Both federal and state governments must act quickly to reduce greenhouse gases; time is running out.