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U.S. Supreme Court ruling limits EPA’s authority in regulating greenhouse gases

The San Miguel Electric Cooperative’s.JPG
Miguel Gutierrez Jr.
/
The Texas Tribune
The San Miguel Electric Cooperative’s coal-burning plant is shown in 2019. The U.S. Supreme Court ruled that the Environmental Protection Agency does not have broad authority to require states to decarbonize their electricity sectors.

The high court said a cap on power plants’ carbon dioxide emissions that forces a transition to other fuels may be a “sensible” solution to the climate crisis, but that Congress did not give the Environmental Protection Agency the broad authority to make such requirements. Texas was one of 17 states that joined in the suit.

The U.S. Supreme Court ruled Thursday that the Environmental Protection Agency does not have broad authority to require states to decarbonize their electricity sectors, a decision that is expected to dramatically slow the United States’ ability to reduce greenhouse gases and mitigate the effects of climate change.

The court’s 6-3 ruling on a case sparked by Texas and 16 other states — which addressed an Obama-era regulation aimed at coal-fired power plants, one of the biggest sources of greenhouse gas emissions in the nation — was a blow to President Joe Biden’s plan to reduce U.S. emissions and meet the country’s goals under international agreements. Now, it will be difficult for the U.S. to do its part to meet a 1.5-degree Celsius target that scientists have said is key to preventing extreme effects of climate change, experts said.

“We have to act rapidly to cut emissions in order to avoid the worst impacts of global warming,” said Luke Metzger, executive director of Environment Texas. “And it’s unlikely that the natural or economic environment of these coal plants will happen fast enough to meet those emission goals.”

The Biden administration said last year that it would implement new policies to slash greenhouse gas emissions in the U.S. One of the major goals Biden set was to reach 100% carbon-free electricity by 2035 — a target that appears nearly out of reach without the EPA’s ability to take sweeping regulatory action to reduce power plants’ greenhouse gas emissions.

Texas Attorney General Ken Paxton was among 17 Republican state attorneys general who sued the EPA over an Obama-era regulation known as the Clean Power Plan that never went into effect. It was repealed and replaced by what was called the Affordable Clean Energy rule under the Trump administration.

Paxton said the decision was a "victory for energy independence."

"This is a great day for American energy production," Paxton said in a statement.

The legal battle has delayed any further attempts by the EPA to reduce greenhouse gas pollution from the coal-fired power plant industry, one of the nation’s largest sources of climate-warming emissions. The ruling means the Biden administration will have to jump through a series of regulatory hoops to change a Trump-era rule that will now go back into effect and back in court — and it’s running out of time to make meaningful strides on climate policies before the end of Biden’s term.

“The fact that the Supreme Court has been deliberating on this case has sort of frozen EPA’s ability to issue new climate policies,” said Dan Cohan, an associate professor of civil and environmental engineering at Rice University who has studied air pollution from coal-fired power plants. “If not for this case, we probably already would’ve seen major regulations issued by the EPA on greenhouse gas emissions.”

The 2014 Obama-era rule would have required states to meet specific carbon emission targets — and those targets would have been difficult to achieve without shuttering some coal-fired power plants. But eight years later, enough coal-fired plants have closed due to high costs and new competition that, without new targets, the rule would not have any effect even if it were reimplemented.

Still, the case had remained snagged in the courts because Washington, D.C., federal judges vacated the Trump administration’s replacement rule, ruling that the EPA had the authority to implement the Obama-era rule. Republican attorneys general, led by West Virginia, challenged that decision in order to preempt the EPA from imposing more greenhouse gas regulations on power plants during Biden’s administration.

“Continued uncertainty over the scope of EPA’s authority will impose costs we can never recoup,” the state attorneys general argued, adding that allowing the lower court ruling to stand would allow the EPA to mandate “wholesale restructuring of the electricity sector.”

The court sided with the states’ characterization of the case. Chief Justice John Roberts, who delivered the majority opinion, wrote that the Obama-era regulation was a “broader conception” of the EPA’s authority and that EPA had located “newfound power in vague language.”

“Agencies have only those powers given to them by Congress,” Roberts wrote. “The agency … must point to ‘clear congressional authorization’ for the power it claims.”

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote, “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

Texas, with its large population, massive industrial sector and what some electricity experts say are lax rules on power plants, emits the most carbon dioxide emissions of any state, according to the Energy Information Administration.

A model of air pollution and health by Rice University researchers in 2018 found that the W.A. Parish coal-fired power plant southwest of Houston contributes an average of more than 100 excess deaths of Texans per year from the health impacts of air pollutants including particulate matter.

Electricity generation is one of the nation’s biggest sources of greenhouse gas emissions — in Texas it accounts for about 28% of those emissions — and coal-fired power plants emit much more carbon dioxide compared with natural gas-fired plants, nuclear power plants, wind turbines or solar panels.

Some technologies can limit the amount of pollution from the plants, but Texas regulators have generally resisted such interventions.

Now, with the limited Trump-era ACE rule back in effect and back in court following the Supreme Court ruling, the EPA will have to explain why it wants to change its own rule again — a long process that will be difficult to accomplish this late in Biden’s term, experts said.

“There is an extensive administrative proceeding that [the Biden administration] will have to undertake in order to remove the ACE rule and replace it with something else,” said Jonathan Brightbill, who argued the case for the government before Washington, D.C., circuit judges during the Trump administration.

Since the EPA sought to regulate them under the 2014 Clean Power Plan, several coal-fired power plants in Texas have shut down even without the rule, as companies replaced them with plants that run on a cheaper fuel source: natural gas. American Electric Power is expected to shutter its Pirkey Plant in Hallsville in 2023, and several others announced the same during the Trump administration, leaving 15 coal plants operating in the state, according to an analysis by Environment Texas.

But as natural gas prices have risen in recent years, coal-fired plants have been given new life. The Energy Information Administration said in 2021 that higher natural gas prices had increased the share of U.S. electricity generated by coal, in turn increasing greenhouse gas emissions.

One coal plant in Texas, Martin Lake in Tatum, emitted 13.5 million metric tons of greenhouse gases in 2020, according to an analysis of EPA data by Environment Texas. That’s equal to emissions from about 3 million passenger vehicles. Three coal-fired power plants in Texas, including Martin Lake, were among the top 10 highest greenhouse gas polluting plants in the country that year, according to the analysis.