In June 2022, the US Supreme Court dealt a substantial blow to the power of the Environmental Protection Agency (EPA) to regulate carbon emissions. In light of the EPA-climate change ruling, it is worth considering whether this is truly the first time that US climate leadership has been questioned or whether this is just the latest in a long-lasting decline.
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What did SCOTUS rule on?
In a 6-to-3 vote, the Justices of the US Supreme Court (SCOTUS) have ruled that the agency is not allowed to take action in climate change matters without specific authorisation from Congress. The case is a clear sign of the increasing hostility of the US Supreme Court towards climate change regulation and some commentators have suggested that it signals the beginning of a decline in US leadership on global climate issues.
The issue brought to the attention of the Justices was whether the country’s Environmental Protection Agency (EPA) could regulate coal-fired power plants, which are the second-largest source of carbon emissions in the United States. The Obama administration had set carbon limits on a state-by-state basis in an attempt to encourage less reliance on coal and instead push towards alternative energy sources. Although this action was blocked by the courts, the program met some of its targets simply because coal became increasingly more expensive than alternative energy sources.
The Supreme Court, however, has now ruled that the EPA – along with other regulatory agencies within the US – are unable to consider or adopt rules that would be considered transformational to the economy unless Congress specifically authorises such actions against a designated problem, such as climate change. But the dysfunctionality of the US legislative branch over the past decades means that such approvals are extremely unlikely to happen.
The most obvious consequence of the West Virginia v. EPA ruling is that it makes it significantly harder for the US to meet targets put in place for the Paris Agreement. The Biden administration has pledged to reach 100% clean electricity by 2035 and meet the United States’ goal under the Paris Agreement of cutting 50% to 52% of its emissions by 2030. In making this pledge, the United States attempted to put in place ambitious yet achievable goals and to assist other nations put in place similar targets. However, prospects are now bleak.
With the political landscape now significantly more challenging, it appears that the country will have to eye opportunities abroad. For example, the US has opportunities to act in the global financial sector by encouraging green investments and requiring the disclosure of climate risks.
While the consequences of this ruling on the country’s climate agenda are perhaps more clear, it is worth taking a look at its implications on the global level.
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Is This the End of US Climate Leadership?
The idea of US climate leadership on the global stage has always been a shaky one. In 1997, the world was sent scrambling when the country withdrew from the Kyoto Protocols. In an attempt to placate the country, new standards were set in a revised accord – the Paris Agreement – which essentially eliminated any legally binding emissions reductions or targets. However, in 2020, former President Donald Trump withdrew from the Agreement. Despite rejoining it immediately after Biden’s election, many environmentalists are sceptical that the country’s representatives are now engaging productively in global climate negotiations.
Rich, polluting countries such as the United States have continuously stalled on delivering climate finance and support for other countries – particularly those in the Global South. Over a decade ago, a pledge was made to mobilise $100 billion annually in climate finance by 2020; yet to be met, the target is still only a tiny fraction of the money required to fight the consequences of climate change.
To suggest that the EPA ruling is the first time the US has abdicated its role on the global stage would mean ignoring the historical data in which the United States has consistently been among the biggest blockers in global climate change progress. For meaningful action to occur, it might be time for the world to look further than the US.
Can the US Still Regulate Emissions?
The SCOTUS ruling should not be used as an excuse for a further delay of the global climate agenda. While the Supreme Court has suggested that the EPA cannot make ‘generational’ power changes, there is room for the Agency to take new action. The Toxic Substances Control Act (TSCA) provides more than enough scope for further regulation of carbon dioxide emissions. Introduced in 1976 and amended in 2016, the Act provides the EPA with the authority to impose reporting, record-keeping, and testing requirements as well as restrictions related to chemical substances and/or mixtures.
The Act has previously been used to restrict harmful chemicals such as lead present in paint and polychlorinated biphenyls. By classifying carbon dioxide as a harmful substance, the EPA could regain regulatory power over emissions that circumvents the ruling from the courts. Some activists have suggested that doing so would not only allow for levies on carbon or deal with carbon legacies, but it would also allow the US – one of the biggest markets in the world – to apply those measures to imports as well.
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