US Coal & the Supreme Court

In the summer of 2015 the United States Environmental Protection Agency (EPA) announced a new plan of action for climate change in the US. While it would be ideal for the US Congress (the House of Representatives and the Senate) to legislate climate change and create laws to address GHG emissions, Congress has not been able to pass regulation in its two chambers. This left President Obama, a leader committed to mitigating climate change, with little choice but to use the Executive branch (the bureaucracy – which he heads). The EPA, under the guidance of Obama, planned to cut GHG pollution from power plants – 30% below 2005 levels by 2030. The US has around 600 coal-fired power plants.

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30%? That is a lot! But it did not mean that power plants would have to immediately close-up shop. The EPA gave states a whole slate of policy options to reduce pollution from electricity generation. States could increase alternative energy (wind and solar are obvious choices) or states could join a national cap-and-trade program (as explained in the book in Chapter 8). And the EPA gave a generous timeline. Emissions reductions are due September 2022.

Last night, February 9th, 2016, the Supreme Court blocked the EPA’s coal regulations. This is a setback for Obama and for climate change. Read the New York Times piece.  The decision was a 5-4 split, which is not too surprising given the court has  4 “liberal” judges. However, the decision overall is surprising. To be clear – the Court did not decide the regulation is unconstitutional (and thereby “strike it down”) but instead issued a “stay” – or essentially, are halting the regulation until further analysis.

The question remains: Can the EPA circumvent Congress and regulate climate change? The Supreme Court hasn’t made a final decision – but it looks like it is willing to pause for consideration. Obama assumed this was totally within his repertoire of powers. And 18 states supported the EPA regulations (yeah, there are still 50 states – so far fewer than half).

The next step is for the Supreme Court to conduct a judicial review of the plan – and make a decision about its constitutionality. There is still hope for these regulations. But this set-back is echoing across the country and globally. Not a great start to 2016 and the American plan to meet its Paris Protocol commitments.

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