How the SCOTUS ruling on EPA’s authority could impact Clean Air Minnesota’s work
The Supreme Court recently limited the U.S. Environmental Protection Agency’s (EPA) ability to regulate carbon emissions that contribute to climate change.
By a vote 6 to 3 in West Virginia vs. EPA, the court ruled that when an agency does something big and new, like requiring plants to shift to clean energy sources, the regulation is presumed invalid unless specifically authorized by Congress. The ruling is a blow to the EPA’s ability to reduce emissions and sets the stage for limitations on other agency’s ability to regulate. I recently sat down with our partnership development officer and air policy expert, Bill Droessler, to chat about how this ruling could impact efforts to reduce sources of pollution through Clean Air Minnesota and the greater movement to reduce greenhouse gas emissions.
This interview has been edited for length and clarity.
The Supreme Court’s ruling limits the EPA’s ability to regulate carbon dioxide from power plants. Clean Air Minnesota focuses on reducing emissions from smaller, more widespread sources of emissions rather than plants, so the ruling doesn’t tie directly to what we do. But could the ruling impact our work in some way?
The immediate direct implication for things that we do is zero. But there are implications. Because we don’t violate any federal air quality standards, and the (Minnesota Pollution Control Agency) doesn’t face the corresponding regulatory pressures, the dynamics are unique in our region relative to other major metropolitan areas regarding emissions. And everything that Clean Air Minnesota does is voluntary. We aren’t making anybody do anything. In that regard, the Supreme Court decision changes the context in which we work, but it has no real direct effect.
But depending on how this plays out, we may have to take a step back and reassess what we might do voluntarily in other industry sectors. For example, we don’t do any work around power plants because much of their operations are federally regulated. But if the structure changes, we may decide there could be options and activities in those industry sectors to try to reduce exposure and emissions. This ruling could change the rules, so to speak, of the bigger structure in which we work and make decisions.
This ruling also guarantees that in many areas, the historically racial and social disparate impact of pollution will continue. This means that the extreme weather effects we’re experiencing will continue to hit these communities the hardest. And these are often already some of the least resilient and least able to cope communities. This ruling diminishes the EPA’s authority and throws responsibility to federal political systems to more explicitly figure out what to do. Currently, that is not a recipe for decisive, effective, or powerful action.
Could there be implications from this ruling that impact Environmental Initiative’s work beyond Clean Air Minnesota?
We have companies and utilities that are part of Clean Air Minnesota and in the Sustainable Growth Coalition that have been actively moving toward greater use of renewable energy, reducing their carbon footprint, and reducing carbon emissions in their operations and supply chains. It will be interesting to see how this plays out in the private sector. Companies may reduce those activities or increase their efforts to make up for the vacuum that is going to be left in those segments.
Also, more could happen at the state or city level to pick up the slack. Will there be more collaborative efforts between these levels of government, nonprofits, and private companies to do more regionally? I think one of the effects is that those kinds of collaborative activities are going to get more local and more condensed.
The “major questions doctrine”, which states there must be clear statutory authority for an agency to regulate an issue of vast political or economic significance, was used by the Supreme Court in this case to determine that the EPA had overstepped their authority with the creation of the Clean Power Plan, a 2015 plan that never went into effect that would’ve required power plants to transition to lower emitting sources of energy production. How could the use of this doctrine potentially impact the EPA’s authority on other issues in the future?
The Supreme Court went through some severe legal and linguistic gymnastics to get to where they got with this case. To me, it was a certain amount of reverse engineering — that they knew what they wanted and where they wanted to go and then figured out how to get there. I think that’s the biggest outcome of this case, because it brings up the question of what other statutory elements in agency actions will be challenged next. There’s little precedent for it, and I don’t think this “major questions doctrine” language appears in any other Supreme Court case.
This decision severely curtails how the EPA goes about obtaining greenhouse gas and carbon emission reductions. It will also undoubtedly result in fewer overall emission reductions, and Clean Air Minnesota will need to step up to help fill in these gaps. We currently focus on emissions reductions of “criteria air pollutants,” pollutants covered by the National Ambient Air Quality Standards like ground level ozone and particulate matter (PM 2.5). One of the things the EPA could do is put more emphasis on reducing emissions from criteria air pollutant sources using authority that’s already been established and is much less likely to be challenged. The bigger issue there though is it’s usually less efficient to reduce greenhouse gas emissions this way. And it’s often a lot more expensive.
How would that work?
The EPA has never approached it that way, so I don’t really know how that might work. But it would mean putting programs like Clean Air Minnesota on steroids. Enormous resources would have to be put into these programs (programs targeting pollutants like ground level ozone and PM 2.5) to get the kind of emissions reductions at the scale that (the EPA) was talking about doing with power plants, since we work with smaller, more dispersed sources of pollutants.
What was your biggest takeaway from this case?
I think that the big takeaways are what other Supreme Court challenges are waiting out there as far as agency activities and areas of regulation. The silver lining of this may be that the EPA, federal, state, and regional governments get more creative and truly collaborative about how they approach and address some of these issues. And maybe more leadership will come out of the private sector.
About Clean Air Minnesota: Clean Air Minnesota is a coalition of air quality leaders convened by Environmental Initiative who are working voluntarily and proactively to reduce man-made sources of fine particulate matter (soot) and ground-level ozone (smog).
Clean Air Minnesota focuses on smaller, widespread sources of emissions that are not regulated in the way power plants and factories are. These sources include cars, trucks, construction equipment, small businesses, and residential wood burning, and they contribute about 75% of air pollution emissions in the state, according to the Minnesota Pollution Control Agency.