Battle of the branches — The Supreme Court went big by going small in yesterday’s landmark climate case.
The court axed an Obama-era plan to curb carbon pollution from power plants. But it didn’t launch a full assault on the Environmental Protection Agency’s authority to slash heat-trapping emissions, as some climate activists had feared.
Some legal scholars say by keeping its ambitions modest, the high court has actually crowned itself king in deciding future climate cases — and left it utterly unclear what rules EPA is allowed to issue.
“What I see is the Supreme Court really just grabbing more power for itself under the guise of suggesting that it’s critical to keep the balance between the legislative and executive branches,” said Jennifer Danis, a senior attorney at the libertarian-leaning Niskanen Center.
The court’s conservative majority argues that the executive branch overstepped its authority in drafting former President Barack Obama’s Clean Power Plan.
And when it comes to “major questions” of political or economic significance — like a national program to cut emissions — the days of giving federal agencies leeway to interpret ambiguous statutes however they want are over.
The “major questions” doctrine is an attempt to rein in what the court sees as regulatory overreach. The problem is the court has yet to define exactly what counts as a major question, said Richard Revesz, an environmental professor at New York University Law School.
“They presented the doctrine in a kind of amorphous and unbounded way,” he said. “And we just don’t know what this means for the next EPA regulation or the next regulation by any other agency.”
Conservative legal scholar Todd Gaziano said he agrees that the court has not “made perfectly clear” what constitutes a major question.
“I sympathize with that concern, but the court usually decides these kinds of important matters in a case by case decision,” said Gaziano, of the Pacific Legal Foundation. “But it is not a power grab for the court to properly decide that the original framework of our Constitution is still required.”
By that he means that Congress, not the agencies, writes the laws. “Congress has increasingly dodged its responsibility, and agencies have increasingly decided to try to engage in policy with the pen and the phone,” he said. “This puts the pressure back on Congress.”
Long dead, embalmed and buried is President Joe Biden’s massive social spending bill, which included a whopping $550 billion for cleaning up the grid and other climate programs.
Democrats have so far failed to sway swing-vote moderate Sen. Joe Manchin (D-W.Va.), who has said he might support a slimmed down version of the bill — but time is running out and numerous obstacles remain.
Read our coverage about what the court’s decision means for EPA and clean electricity.
Thank goodness it’s Friday — this concludes the first week of POLITICO’s Power Switch, thank you for tuning in! I’m your host, Arianna Skibell. Power Switch is brought to you by the journalists behind E&E News and POLITICO Energy. Send your tips, comments, questions to [email protected]
Programming Note: We’ll be off this Monday for the Fourth of July but will be back in your inboxes on Tuesday.
In response to Superstorm Sandy and the reality of sea-level rise, New York-based artist Sarah Cameron Sunde stood in water for 12 hours and 48 minutes while the tide rose and fell over her.
That moment has grown into a collaborative performance piece involving hundreds of people all around the world who live near a body of water where sea levels are expected to rise.
The culminating work in the series will take place in New York this fall.
On the chopping block
After his victory yesterday in the Supreme Court, West Virginia Attorney General Patrick Morrisey (R) said he now intends to go after the Securities and Exchange Commission’s climate risk disclosure rule, writes Avery Ellfeldt.
Morrisey said the SEC’s rule, which would require public companies to disclose their carbon footprint, intentionally sidesteps the will of Congress. Get the story here.
Fleeing D.C.
After 18 months of frustration with major setbacks to Biden’s climate agenda, environmentalists and their Democratic allies are giving up on Washington, shifting their focus to state capitals, writes Zack Colman.
“There’s lots of tension around what comes next. I think the power is going to be outside of Washington, D.C.,” said Christy Goldfuss of the Center for American Progress. Read the story here.
Crypto climate push
Crypto companies will have to disclose just how much climate damage is tied to the tokens they’re hawking, at least in Europe, writes Lisa Martine Jenkins.
The European Parliament and E.U. states have agreed to regulate cryptocurrencies, whose generation requires obscene amounts of energy. While the law does not impose a limit, it’s a major step toward opening crypto’s black box. Here’s the story.
Highway smackdown: The Biden administration has announced a record $1 billion investment to tear down highways that divided and pollute communities of color. You may not know this, but the U.S. highway system was influenced by Adolf Hitler’s design in Germany. Yikes!
Got those climate blues? Climate anxiety is now considered a very real, diagnosable mental health condition. Experts say limiting your social media can help. Good luck with that.
Today in the POLITICO Energy podcast: Alex Guillén explains how yesterday’s Supreme Court ruling kneecaps Biden’s ability to address global warming and could raise questions about the authority of other federal agencies.
The science, policy and politics driving the energy transition can feel miles away. But we’re all affected on an individual and communal level — from hotter days and higher gas prices to home insurance rates and food supply.
Want to know more? Send me your questions with “Question Corner” in the subject line. We’ll pick a handful to answer each week in the newsletter.
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Lawsuits are increasingly targeting governments and companies for climate inaction or greenwashing, posing a rising threat to fossil fuel majors and other corporate polluters.
The Biden administration has been approving permits to drill for oil on federal land at a faster clip than the Trump administration did over a comparable period.
Calif. Gov. Gavin Newsom (D) is postponing the closure of natural gas plants, in a controversial move to keep the lights on during summer heat waves.
That’s it for today, folks. Thanks for tuning in, and have a great weekend!
