US top court to hear high-stakes case on environmental regulation

WASHINGTON • The conservative-dominated US Supreme Court is to hear an environmental regulation case today with potentially far-reaching implications for the Biden administration's fight against climate change.

The high-stakes case concerns the authority of the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from coal-fired power plants, which produce nearly 20 per cent of the electricity in the United States.

"This is the first major climate change case to be before the justices in 15 years and the court's membership has dramatically changed since then," said professor of environmental law Richard Lazarus at Harvard University.

In 2007, the Supreme Court, by a narrow majority, ruled that the EPA has the power to regulate carbon dioxide emissions from power plants under the Clean Air Act of 1970.

The nation's highest court has been radically transformed in recent years, however. Former Republican president Donald Trump, a climate change sceptic hostile to government regulation of industry, nominated three justices to the nine-member court, giving conservatives a 6-3 majority.

"Because we have the most conservative Supreme Court that we've had in decades, many of the people from the fossil fuel industry are asking the court to do all kinds of outrageous things to limit EPA authority," said Dr Robert Percival, director of the Environmental Law Programme at the University of Maryland.

In 2015, Democratic president Barack Obama unveiled his Clean Power Plan, which was intended to combat global warming by reducing carbon dioxide emissions from coal-and gas-burning plants and shifting energy production to clean sources such as solar and wind power.

The Clean Power Plan was blocked in the Supreme Court in 2016 and repealed by Mr Trump, who replaced it with his own industry-friendly Affordable Clean Energy (ACE) rule.

The US Court of Appeals for the District of Columbia threw out Mr Trump's ACE rule on the last day of his presidency, however, setting the stage for the case currently before the Supreme Court: West Virginia vs EPA.

West Virginia and several other coal-producing states asked the Supreme Court to intervene and define the powers of the EPA.

By accepting the case, the court sent a signal to detractors of the agency and, more broadly, opponents of strong government regulatory authority. "This was like a Christmas gift to regulated industries," Dr Percival said.

In its brief to the court, West Virginia accused the EPA of acting like "the country's central energy planning authority".

The EPA is "reshaping the power grids and seizing control over electricity production nationwide" without the express authorisation of Congress, the state said.

No matter "how serious the problem", West Virginia said, a federal agency "may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law".

Prof Lazarus said there is "good reason for concern" that the court will rule against the EPA.

The court could find that Congress is "powerless to delegate an administrative agency the authority to issue regulations that address major public health and welfare issues such as climate change", he said.

"Or, that it can do so only with very precise statutory language enacted by Congress. In either event, given how partisan gridlock (is in Congress) such a ruling would seriously threaten the national government's ability to address some of the nation's most pressing problems including, but not limited to, climate change."

Several environmental protection groups have submitted their own briefs to the court in support of the EPA.

"In the absence of sustained efforts to reduce greenhouse gas emissions," a group of climate scientists said, "the total increase in temperature could surpass (5.6 deg C) - leading to physical and ecological impacts that would be irreversible for thousands of years, if ever."

"It is still possible to mitigate the human and economic costs of climate change if greenhouse gas emissions from existing power plants and other sources can be reduced," they said. "But such mitigation will require significant coordination at the federal level."

AGENCE FRANCE-PRESSE