SCOTUS had its say on power plant regulation; now Pennsylvania Supreme Court must decide
By Tom Schuster, Interim Chapter Director, Sierra Club Pennsylvania Chapter
As we sweat through another historically hot summer, climate activists in Pennsylvania have been dealt a 1-2 punch of bad court decisions that limit or delay needed restrictions on carbon pollution from power plants.
In June, the U.S. Supreme Court issued a ruling in West Virginia v. EPA that the agency overstepped its authority with its design of the Obama-era Clean Power Plan (CPP). In brief, the court found that the Environmental Protection Agency (EPA) cannot set limits for pollution that are based on the shifting of generation from coal-fired power plants to lower-emitting sources without a clear mandate from Congress to do so.
The impact of this decision is not immediate, because the CPP never actually took effect - it was stayed by the Supreme Court in 2016, and then replaced during the Trump administration with the much weaker rule “Affordable Clean Energy Rule” (or ACE, which itself had already been struck down by a federal court for being an abdication of EPA’s climate regulation duties). The fact that the Supreme Court took the case at all under these circumstances was a major break from precedent. The silver lining with respect to timing is that as the EPA prepares its replacement for both the CPP and ACE, it has some guidance from SCOTUS that could prevent the eventual rule from being struck down again in a few years.
Another reason it was not nearly as bad as it could have been is that it did not overturn Mass v. EPA, a landmark 2007 ruling that said EPA has the authority and duty to regulate greenhouse gasses under the Clean Air Act. Had that reversal happened (which wouldn’t have been surprising given that the court had overturned Roe v. Wade the week before), it would have doomed any current or future EPA regulation of climate disrupting pollution in the absence of congressional action. This means that EPA must still create a regulation which, according to some legal theories, could actually lead to a more impactful rule than either CPP or ACE.
Unfortunately, the real negative impact of this ruling will likely be on future regulations. In supporting the ruling, the majority opinion relies on a “major questions doctrine”, which basically says that federal regulatory agencies cannot create regulations “of major economic and political significance” without explicit direction from Congress, which has failed time and again to seriously address this issue. Not only does this limit agencies’ ability to interpret existing laws in the context of emerging real-world problems like climate change and COVID-19, it opens up a huge amount of uncertainty about what the court will allow and what it won’t. This in turn opens a new line of legal attack on any climate regulation that attempts to reduce greenhouse gas emissions on the scale and timeline that the atmosphere actually demands.
With the federal government again failing to step up, actions in major energy producing and consuming states like Pennsylvania become all the more important. After a two and a half year fight, the regulation allowing us to participate in the Regional Greenhouse Gas Initiative (RGGI) finally became law on Earth Day this year. Within three days, the coal industry and some labor unions sued to block it. Sierra Club and some allies moved to intervene in support of the rule.
In late June, a Commonwealth Court judge denied our intervention, and a week later issued a preliminary injunction, which prevents the Department of Environmental Protection (DEP) from enforcing RGGI until the court challenge is resolved. This could take many months, and could jeopardize our participation in the next quarterly auction of RGGI allowances in September. This would not only let polluters off the hook, it could deprive the Commonwealth of up to $200 million in allowance proceeds that could be invested in energy efficiency, clean energy, and other pollution reduction measures.
We have now appealed these two Commonwealth Court decisions to the Pennsylvania Supreme Court. Thankfully, the makeup of the Pennsylvania Supreme Court is currently more progressive than at the federal level, so we are hopeful that we might see a positive ruling, and in a timely fashion. However, this will be just one step in ensuring that we preserve RGGI and expand state and local level climate mitigation efforts in the ongoing absence of federal legislation. We appreciate your continued support, because it is clearer than ever that the fight against climate disruption is increasingly happening in our own backyard.
This blog was included as part of the August 2022 Sylvanian newsletter. Please click here to check out more articles from this edition!