Supreme Court And Carbon Regulation: West Virginia V. EPA Requires Rethinking Climate Activism

Sustainability Supreme Court And Carbon Regulation: West Virginia V. EPA Requires Rethinking Climate Activism Nives Dolsak and Aseem Prakash Contributor Opinions expressed by Forbes Contributors are their own. We write on environmental issues, climate politics and NGOs.

New! Follow this author to improve your content experience. Got it! Jul 4, 2022, 04:25pm EDT | Share to Facebook Share to Twitter Share to Linkedin WASHINGTON, DC – FEBRUARY 28: Ethan Barragan, Change the Chamber / student activist speaks outside . .

. [+] the Supreme Court. (Photo by Leigh Vogel/Getty Images for NRDC) Getty Images for NRDC Last week, the Supreme Court ruled by 6-3 majority in West Virginia v.

EPA , that the EPA could not compel coal power plants (via the Clean Power Plan) to switch to renewables. This reversed the 2007 ruling in Massachusetts v. EPA when the Supreme Court found that carbon dioxide is a pollutant under the Clean Air Act and directed the Environmental Protection Agency (EPA) to regulate it.

Given that electricity generation is the key contributor (either directly or via the electrification of the automobile industry) to U. S. carbon emissions, did the Court basically gut US climate mitigation efforts? Without federal carbon regulations, how might the US rapidly decarbonize and how could the climate movement support such efforts? Crises present opportunities because they force actors to rethink goals and tactics.

Below we outline how the climate movement could convert West Virginia v. EPA ruling into a political opportunity. Why is this a Crisis? Multiple veto points in the policymaking process make the U.

S. federal government a climate laggard. At a minimum, new federal legislation requires agreement from 3 actors: the House, at least 60 members of the Senate, and the President.

Increasingly, this is a rare event in environmental policy: exceptions include the recent hydrofluorocarbon legislation (which ratified the Kigali amendment to the Montreal Protocol) and the Great American Outdoors Act . Federal legislative failure motivates pro-climate Presidents to use the EPA for climate policy. But this requires that the EPA has the authority to make such rules.

When the authority is ambiguous or unclear, courts may still allow the EPA to move ahead, as per the Chevron deference doctrine. The Clean Air Act requires the EPA regulates major air pollutants, while not specifically listing carbon dioxide as a pollutant. In 2007 Massachusetts v.

EPA , the Supreme Court held that EPA could regulate carbon emissions under the Clean Air Act but in 2022 West Virginia v. EPA , the Supreme Court decided otherwise. MORE FOR YOU Is Carbon Capture Another Fossil Fuel Industry Con? Sustainable Fashion Wants Brands To Redefine Business Growth Trouble With Predicting Future Of Transportation Is That Today Gets In The Way What is the lesson? West Virginia v.

EPA does not prohibit regulating carbon emissions. The EPA could do so if the Congress amended the Clean Air Act and expressly granted it the authority. This could be a way forward but would require pro-climate House and Senate majorities.

The court’s decision came at a time when climate policy is floundering. The global supply chain crisis and the Ukraine invasion have caused a massive spike in gas prices. Politicians across the world are retreating from their climate positions.

Instead of championing carbon pricing, they want gas tax suspensions. Governments want companies to restart coal plants (including climate leaders such as Germany) and drill new oil and gas wells both at home and abroad (so much for “ keep it in the ground ” argument). Moreover, governments are supporting new fossil fuel infrastructure consisting of pipelines, LNG plants, and large tankers to move natural gas across oceans.

Because infrastructure is very expensive and has an economic life of several decades, the world is getting locked even more deeply into the fossil fuel economy. Thus, West Virginia v. EPA could be viewed as a part of the broader retreat from decarbonization.

Could this be an Opportunity? Crises disturb the status quo and open what political scientist John Kingdon called policy window s, which allow policy entrepreneurs to match solutions with policy problems. West Virginia v. EPA could be an opportunity for climate activists to rethink their political strategy.

They could use it to reaffirm popular mandate for carbon regulation, thereby countering the criticism that climate policy is elitist. Opinion polls suggest growing public support for climate action and public concern about the ramification s of West Virginia v. EPA.

And public support does correlate with electoral outcomes. In the 2020 Congressional elections, voters rewarded House members who endorsed the Green New Deal. Why not turn the 2022 midterm elections into a de facto climate referendum? The climate movement could pitch that a pro-climate Congress is needed to amend the Clean Air Act so that the EPA is able to regulate carbon emissions.

This requires that the climate movement is willing and has the muscle to place climate on the top of the liberal agenda. However, the country faces several crises, which makes the liberal agenda expansive, thereby losing its climate focus. Perhaps, now is the time for the pro-climate leaders to speak up and focus singularly on carbon regulation .

Scholars note that between 2005 and 2015, US carbon emissions from the electricity sector declined. They debate whether this decline was due to the 2007-09 financial crisis , which reduced electricity demand, or fracking, which increased gas supplies, thereby motivating power plants to switch from coal to cheaper natural gas. Importantly, this decline took place in the absence of federal carbon regulations.

Could then carbon regulations accelerate emission decline? There is some work suggesting that state-level renewable portfolio standards have led to emission reductions. In addition to the federal carbon regulation, how might the transition from fossil fuels to renewables be supported? The challenge is to get the price right and create a supportive policy environment. For example, could the Biden administration be persuaded to permanently withdraw tariffs on solar panels given the lack of domestic US manufacturing capacity? There is another emerging policy challenge for renewables.

Several rural U. S. counties have passed ordinances restricting solar and wind farms.

Without utility-scale application, solar and wind’s price advantage over fossil fuels will shrink. Yet, it is not clear whether the climate movement has a political strategy to address rural opposition. We examined the websites of top 10 US environmental nonprofits and did not find even one prominently talking about this subject.

Nuclear Energy and Carbon Capture The climate movement views renewables as the key pillar of decarbonization. Might it reassess its opposition to (or tepid support for) nuclear energy? Germany is willing to restart coal but not nuclear plants. California is a bit more flexible.

It has temporarily reversed the plan to close down the Diablo Canyon nuclear plant (which would invariably be replaced by natural gas). But nuclear should not be viewed a short-term fix and hopefully West Virginia v. EPA provides the opportunity for the climate movement to revisit the nuclear question.

Finally, carbon capture needs to be given careful attention. The reality is that countries will slow down decarbonization if they face backlash over inflation, power outages, or recession. Perhaps, carbon capture is now a necessary part of the policy package if net-zero by 2050 needs to be achieved.

In sum, West Virginia v. EPA should motivate the climate movement to secure a popular mandate for federal carbon regulations and ensure that local, state, and federal policy contexts continue to support utility-scale solar and wind. Moreover, it should revisit nuclear energy and carbon capture, along with having an open mind about new possibilities such as fusion and hydrogen.

The coming months will reveal whether the movement will be immobilized by the recent Supreme Court ruling or leverage it to push for a new decarbonization strategy. Nives Dolsak and Aseem Prakash Editorial Standards Print Reprints & Permissions.