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Supreme Court ruling passes climate change fight off to a hobbled Congress

By curbing the authority of the EPA, the Supreme Court added another task to Congress' lengthy to-do list.

WASHINGTON (CN) — In a narrow ruling on Tuesday that limited the authority of the Environmental Protection Agency to regulate carbon dioxide emissions, the Supreme Court handed the fight against the climate crisis over to Congress, placing a heavy burden on an already gridlocked legislature.

The high court decided the case on the last day of its term, ruling 6-3 that the EPA could not direct coal power plants to shift away from fossil fuels to alternative clean energy sources because Congress did not explicitly give the agency the directive to do so.

“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,’” Chief Justice John Roberts wrote in the court's majority opinion. “But it is not plausible that Congress gave EPA the authority to adopt on its own such regulatory scheme." 

While the decision was a narrow ruling over a law called the Clean Power Plan that has not been in effect for years, experts say the opinion puts the onus on Congress to pass legislation clearly stipulating what actions executive agencies can take on climate change and how they can be carried out to survive legal challenges.

“We have these levels of bureaucracy that extend beyond Congress because in any world it's very hard for a legislative body to do everything. That's the point of things like the EPA, the FDA, or any of the departments for that matter. So this definitely makes it quite difficult for any legislation to be as nimble and flexible as it needs to be, given the rapidly changing landscape that we're facing because of climate change,” Paasha Mahdavi, political science professor and environmental politics researcher at University of California Santa Barbara, said in an interview. “If you’re now saying you have to write new legislation to fix whatever climate problem, that's added time, and time is not what we have.”

Passing legislation that directs agencies such as the EPA to act on climate change and specifically delineates the ways in which they can do so could be a tall order for Congress, a body currently grappling with a deep partisan divide, long-stalled climate change legislation, an evenly split Senate and fast-approaching midterm elections.

“I think that most people would agree that, even though the Supreme Court is essentially saying that Congress is the answer, Congress is not the answer. They can't be, we've seen that over and over again. And so I do think that this is making the executive branch agencies have to try to thread the needle and look at what they can do outside of this case," Seema Kakade, director of the environmental law clinic at the University of Maryland Carey School of Law, said in an interview.

After Friday’s ruling in the EPA case, several Democratic leaders and President Joe Biden condemned it. Meanwhile the complexities it created for Congress were immediately clear.

"There's no easy fix from Congress from this mess," Democratic Senator Sheldon Whitehouse of Rhode Island told the Associated Press.

With the 2022 midterms fast approaching, an already divided Congress faces the possibility of divided government, with Congress controlled by Republicans, or one chamber of Congress controlled by each party, come November.

“Very little is going to be done if that happens between now and 2024. So without agency ability, we lose another two years, and we are out of time," Mahdavi said.

Maadavi said the ruling could raise other questions down the line about Congress and the federal government's authority to regulate greenhouse gas emissions and water and air pollution, which could further complicate the legislature's ability to respond both to the ruling and the climate crisis itself.

“The decision kind of opens the door for lots of other decisions. If, for example, we do pass climate legislation before the end of this congressional session, this opens the door for challenges to that,” Mahdavi said. "Congress is going to have to think very deeply about the kinds of laws that can be enacted that will survive a state suing an agency like this. I think that is a question about legislative design. And I think the answers to that question aren't great."

The markets for green technology and clean energy have grown in recent years, but the expansion of oil on the U.S. market to drive down volatile consumer prices combined with the court's ruling aren't helping move things forward.

"For green tech, it just adds yet another roadblock. And what you want to see is the exact opposite: policy and administrative capacity and regulatory authority that boosts a nascent industry," Mahdavi said. "We need a highway more than anything else to get these technologies to actual mass deployment."

While the court's decision largely passes the buck to Congress, Kakade said the EPA has some ability to get creative and incentivize companies to reduce their carbon dioxide emissions.

“Most major air emission facilities in the power sector and across multiple sectors manufacturing, and other industrial sectors require permits. The EPA could push back on individual permits or could push states to push back on individual permits and make them more restrictive," Kakade said.

She emphasized that Congress, the EPA and the White House are not the only actors critical to addressing the climate crisis.

“As much as this ruling significantly limits the ability for the Biden administration to do more on climate change, it also sends a signal that other sectors of our society need to pick up the slack," Kakade said. “Major corporations need to step up. They need to push for green energy in their own facilities, regardless of whether there's a regulation requiring them to do it, they need to do it themselves. Consumers need to push for it, because this is a crisis that everybody needs to tackle.”

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