As Texans swelter under an unrelenting heatwave and breathe polluted air, Ken Paxton joined 16 other state attorneys general in celebrating the Supreme Court decision on Thursday to undermine the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. With West Virginia leading the charge and coal companies joining in, the group had filed a lawsuit last year against the EPA asking the Justices to reign in the federal agency’s powers under the Clean Air Act.
The lawsuit took aim at former President Obama’s Clean Power Plan, a defunct EPA rule from 2015 that would have required electricity providers to cut emissions from coal- and gas-fired power plants. The plan called not just for incremental upgrades at individual facilities but for states and utilities to remix their energy portfolios to include more renewables over time (as well as temporarily switch from coal to gas) either directly or through a cap-and-trade system.
This week, the Court ruled against the EPA in favor of the coal industry. The EPA continues to have some overarching authority to regulate greenhouse gases. The agency just can’t do so by mandating a systemic switch to cleaner sources of energy.
“This is a great day for American energy production,” Paxton said in a statement.
But he and the other attorneys general might just have played themselves. Now, the EPA is limited to regulating each power plant individually. So rather than compelling states and utilities to shut down fossil fuel facilities and open new renewable energy ones, the agency can only make existing coal and gas plants install fixes and upgrades onsite. This could include mandating the use of emerging technologies to physically remove carbon emissions from the air—ultimately a much costlier fix than switching to renewables.
This case was controversial not only because of the urgent and unfortunately politicized nature of the climate crisis, but because the Biden administration is not even implementing the Clean Power Plan, which has been caught in years of tug-of-war between the past three administrations and the federal courts. Because the EPA doesn’t have an active program, nothing will change immediately for power plants in Texas or around the country, explained Kirti Datla, an attorney at Earthjustice.
“There’s nothing actually at stake in this case” for the states and companies that brought the suit, she said. “The Court shouldn’t be hearing it.”
Now that the Supreme Court has heard West Virginia v. EPA, though, its decision will shape how Biden and the EPA regulate greenhouse gases going forward. Supreme Court Chief Justice John Roberts wrote in the majority opinion: “[T]his Court doubts that Congress … intended to delegate … ‘decision[s] of such economic and political significance,’ i.e., how much coal-based generation there should be over the coming decades, to any administrative agency.”
The opinion “has the ability to really hamstring” not only the EPA’s ability to deal with climate change but federal agencies’ abilities more broadly to protect people’s health, safety, and welfare, according to attorney Andres Restrepo at the Sierra Club, which was involved in the case.
That’s because Roberts invoked the “major questions” doctrine, a relatively obscure way of interpreting the law—until recently. Under this school of legal thought, in “certain extraordinary cases,” where the Court (arbitrarily) decides federal regulations might make sweeping changes to “a fundamental sector of the economy,” the agencies responsible need to meet a higher standard of proof to show that Congress gave them the authority for those regulations. This decision on West Virginia v. EPA could open the door for people to question other federal rules on a wide range of issues.
It’s a step that “a lot of legal conservatives have been interested in for a very long time, in chipping away at the authority of government agencies,” Restrepo said.
Ironically, unchecked climate change is already drastically transforming the economy for the worse. Even a national report produced under the Trump administration in 2018 warns that the climate crisis could cause some sectors of the U.S. economy could lose hundreds of billions of dollars each year by the end of the century.
In the dissenting opinion, Associate Supreme Court Justice Elena Kagan outlined a litany of reasons that Congress did indeed give the agency authority to select the best available system of emission reduction for power plants, including shifting to cleaner sources of energy. “The ‘best system’ full stop—no ifs, ands, or buts of any relevant kind here,” she wrote.
Kagan accuses the Court’s conservative majority of being disingenuous in ruling against the EPA and of simply being eager to obstruct federal regulation, including climate action. “This Court could not wait—even to see what the new [Biden administration] rule says—to constrain EPA’s efforts to address climate change,” she said.
Texas Urgently Needs to Clean Up Its Grid
During all this back and forth over whether to preserve the atmosphere and our quality of life on Earth, the outdated American power sector continues to belch out roughly 1.5 billion metric tons of greenhouse gases per year. And Texas, of course, is the country’s leading electricity producer.
“The electric grid in Texas has been slowly getting cleaner over the last few years. But the change isn’t rapid enough. And it’s one of the reasons that EPA regulation is important,” said Al Armendariz, a former regional EPA administrator for Texas and its neighboring states. “Without national regulations that establish a standard that every power company has to meet, you can have laggards.”
Texas is also the country’s largest consumer of coal (generally the most polluting fuel) and has the dubious honor of operating the three dirtiest coal-fired power plants in the United States, including NRG’s Parish Generating Station outside Houston, which has been plagued with problems recently. The facility caught fire this May after failing during Winter Storm Uri last year.
“These power companies need to ramp [their polluting plants] down and replace them with clean energy as quickly as possible,” Armendariz said. “Otherwise, droughts and heat waves will continue to get worse in Texas. And unfortunately, the Texas Attorney General’s office has been on the wrong side of this issue for many, many years.”
In the absence of federal regulation—and in Texas, the presence of a state government that’s actively hostile toward climate policy—local governments can still take some matters into their own hands. Austin and San Antonio, for example, own and operate their own utilities, and both still rely on coal plants to meet some of their electricity needs. For the better part of a decade, residents of both cities have been urging local officials to shut down these plants and to clean up the toxic byproducts of power generation.
Even without considering greenhouse gas emissions, Austin and other cities have plenty of reasons to get out of the coal business. But first, they need to deal with the consequences. Like all of the coal plants in Texas for which data are available, the Fayette coal plant in La Grange, co-owned by Austin Energy, is leaking toxic coal ash into groundwater and endangering local people’s health, according to a 2019 study by the Environmental Integrity Project. This kind of pollution needs to be removed and stored properly before power plant owners wash their hands of the coal industry.
In addition, the cruel twist of climate change now, as the state electric grid strains under record high temperatures and the accompanying demand for air conditioning, is that Texas desperately needs more power, not less. Even faster than the state shuts down fossil fuel plants, it needs to build more renewables and transmission lines while investing in weatherization and energy efficiency. The Clean Power Plan or similar regulation would have helped states achieve this ambitious but desperately needed goal in a flexible and relatively affordable way. Too bad the Supreme Court decided it knows better than the EPA.