(This post was co-authored by EDF legal fellow Jesse Hevia)
The Supreme Court has agreed to review a D.C. Circuit decision that struck down the Trump administration’s rule weakening regulations of carbon pollution from power plants.
Here’s a look at what happened – and what might happen next.
This piece was co-authored by Stephanie Jones, Attorney, Climate Risk and Financial Regulations, and Gabe Malek, Project Manager, Investor Influence at EDF.
Climate change poses grave risks across society, including “more frequent and intense storms, wildfires, and heatwaves as well as more damaging droughts and more extensive ecosystem losses.” All people face climate harms, today: “this year alone, extreme weather has upended the U.S. economy and affected one in three Americans.” Policymakers must act with urgency to protect all Americans in the face of the unfolding climate crisis, and safeguarding peoples’ financial health and stability is urgent and paramount – no American should face financial jeopardy due to the harms climate change poses to their retirement account or ability to prudently manage personal and home finances.
Importantly, Washington and Wall Street are increasingly taking steps to recognize and manage climate risks. A number of important activities have taken shape in recently weeks, all designed to protect Americans’ financial futures. Measures range from proposed rules that would improve lifelong retirement savings plan selection to report findings that make transparent the harms climate change presents to the foundational stability of our banking system.
Eight of the most significant recent U.S. developments in the last few months of 2021 are highlighted below. It is crucial that we build upon these steps and take concrete, urgent action now to protect families, all people with bank accounts small and large, investors from main street to wall street, retirees, and all who depend on a financial system that is not destabilized by climate change.
In addition to checking the temperature and the chance of rain before leaving home, many people have been forced to add a new indicator to their daily weather check – air quality.
Ground-level ozone pollution – more commonly known as smog – reached dangerous levels across the U.S. this summer. EDF’s new analysis found that almost every state experienced unhealthy levels of it, with millions of Americans exposed to dangerous air pollution.
The current national standard for ground-level ozone pollution is 70 parts per billion. As you can see from the maps above, 45 states had at least one day between March and August with levels that exceeded that limit.
However, there is a substantial and growing body of scientific evidence that shows serious health effects from ground-level ozone exposure at levels below the current standard. When the data is expanded to consider ground-level ozone levels greater than 60 parts per billion, which would be a health-based standard more consistent with the scientific evidence, the picture of summer ozone levels is even more concerning – all but one state (Hawaii) had at least one day with levels that exceeded that amount.
Our analysis also found:
There were many wildfires this summer and wildfire smoke is one of the sources that can contribute to elevated levels of ozone pollution. EPA establishes standards based on health science alone, and the agency has long had policies in place that allow states to account for truly exceptional events. Our analysis includes all recorded high ozone readings and does not exclude any high ozone days
This coming Monday, the Supreme Court will consider hundreds of petitions for review, which ask the Court to take up cases for full consideration during its new term. Among the petitions for review are four from coal companies and states asking the Court to review the D.C. Circuit decision overturning the Trump administration’s rule weakening regulations of carbon pollution from power plants. For multiple reasons the four petitions lack merit.
The Clean Power Plan, adopted in 2015, established the first-ever national limits on climate pollution from existing power plants. In 2019, the Trump administration adopted regulations to repeal the Clean Power Plan and replace it with the “ACE” rule – which did virtually nothing to limit pollution.
This January the D.C. Circuit struck down this attempt, issuing a narrow opinion that explained how ACE misinterpreted specific language in section 111 of the Clean Air Act.
In the months since the D.C. Circuit’s decision, neither the Clean Power Plan nor the Trump administration’s weak replacement rule has been in effect, meaning that no power plants or operators have experienced harm under either rule. Additionally, EPA has been working from a clean slate on new safeguards that will reflect current information about our rapidly changing power sector. Despite this, and the fact that no one is subject to any compliance obligations under the Clean Power Plan or ACE, coal companies and 21 states are asking the Supreme Court to reverse the D.C. Circuit opinion and issue a statutory interpretation that limits EPA’s ability under the Clean Air Act to protect the public from climate pollution.
Effectively, they are asking the Court for an “advisory” opinion — a free-floating legal opinion untethered to any current dispute but intended to constrain future behavior. EDF is part of a coalition of environmental organizations that – along with almost two dozen states and cities, power companies and business associations – opposes this challenge.
Rather than take up this case in order to consider legal theories in the abstract, the appropriate course would be for the Court to allow EPA to complete its new rulemaking, which will be subject to judicial review once finalized. At that time, reviewing courts will be able to assess EPA’s actual application of its Clean Air Act authority in the context of real compliance obligations and a factual record that reflects current realities.
Here are four key reasons that the petitioners’ pleas for Supreme Court review should fail:
Johnny Lye. iStock
The environmental integrity of emissions reductions depends on scale and systemic changes, not on sector of origin of the emissions
We urgently need to reduce greenhouse gas emissions far beyond current climate pledges, even if these were fully attained. But there’s a completely doable way to make major progress, near to hand.
Natural climate solutions can provide 20% of all the emissions reductions we need by 2050 to keep average global warming under 2 C. Stopping tropical deforestation, allowing tropical forests to regenerate and restoring degraded lands are the most important methods, particularly in the next decade. Letting countries or companies that exceed ambitious targets trade their surplus emissions reductions to those who fall short would permit much greater global emissions reductions than not trading. Countries could reach their targets more quickly, and trading would create more incentive to protect and restore land.
Some researchers and policy makers have held that nature-based solutions, such as stopping deforestation, are too risky. A forest you protect today could burn down tomorrow. But in fact, this problem exists with all emissions reductions, not only those based in terrestrial carbon. And nature-based solutions are worth considering as many of the highest quality and highest value emissions reductions that are feasible in the coming years.
A new article in Environmental Research Letters by scientists and economists from the Environmental Defense Fund and Princeton University shows that the best way to execute emissions reductions – whether they are from protecting forests or cutting down on fossil fuel –is to go big.
Photo Credit: BeyondDC
Congress is building momentum toward bold clean energy policies that will create millions of jobs, accelerate clean energy and fight climate change. The bipartisan infrastructure deal the Senate passed in August was a positive and necessary first step. And now, we are looking forward to ambitious action that will help tackle the broad scope of the climate change crisis we all face.
We are focused on ensuring Congress does not miss this historic opportunity to drive down emissions in the power and transportation sectors, particularly in ways that advance environmental justice. Read More
