What cities seeking to reduce greenhouse gas emissions need to know about the Supreme Court’s recent ruling against the EPA’s Clean Power Plan.

By Lisa Soronen

This article was adapted from the National League of Cities CitiesSpeak blog with permission from the author.

In its recent ruling, West Virginia v. EPA, the US Supreme Court held 6-3 that the Environmental Protection Agency (EPA) lacked the statutory authority to issue the Clean Power Plan (CPP). Here’s what you need to know about the ruling, and how it may—or may not—inhibit a local response to the climate crisis.

What’s in the clean power plan

Per the Clean Air Act, the EPA may develop air-pollution standards for new and existing power plants that reflect “the best system of emission reduction” (BSER). Before the CPP, when EPA regulated under this provision of the Clean Air Act, it required existing power plants to make technological changes—like adding a scrubber—to reduce pollution.

In 2015, EPA released the Clean Power Plan, which determined that the BSER to reduce carbon emissions from existing power plants was through “generation shifting.” This entailed shifting electricity production from coal-fired power plants to natural gas-fired plants, wind energy, and solar energy. Operators could do this [generation shift] by reducing coal-fired production; buying or investing in wind farms or solar installations; or purchasing emission credits as part of a cap-and-trade regime.

The goal of the CPP was to reduce the share of national electricity generation from coal by 2030 to 27 percent, down from 38 percent in 2014.

What the court ruled

The Court, in an opinion written by Chief Justice Roberts, held that generation shifting exceeds EPA’s authority under the Clean Air Act because Congress didn’t give EPA “clear congressional authorization” to regulate in this matter. “As a matter of ‘definitional possibilities,’ generation shifting can be described as a ‘system’—‘an aggregation or assemblage of objects united by some form of regular interaction’ capable of reducing emissions. But of course, almost anything could constitute such a ‘system;’ shorn of all context, the word is an empty vessel. Such a vague statutory grant is not close to the sort of clear authorization required by our precedents.”

The EPA had to show it had “clear congressional authorization” to adopt the CPP, because the Court applied the major questions doctrine. This doctrine applies, according to the Court, in “extraordinary cases”—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.

The Court opined this is a major questions doctrine case because “[i]n arguing that [the relevant provision of the Clean Air Act] empowers it to substantially restructure the American energy market, EPA ‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority.’ It located that newfound power in the vague language of an ‘ancillary provision’ of the Act, one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.”

Justices Kagan, Breyer, and Sotomayor dissented. They argued that “The ‘best system’—full stop—no ifs, ands, or buts of any kind relevant here” is a broad congressional authorization. “The parties do not dispute that generation shifting is indeed the ‘best system’—the most effective and efficient way to reduce power plants’ carbon dioxide emissions…. A key reason Congress makes broad delegations like Section 111 [of the Clean Air Act] is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.”

Impact on cities

This decision provides a limit on federal agency authority only. Nothing in the Court’s opinion stops local governments— or states for that matter—from using their legal authority to try to reduce greenhouse gases. According to a recent American Council for an Energy-Efficient Economy (ACEEE) blog posting, 20 of the 38 large cities that ACEEE follows are “on track to achieve greenhouse gas reductions in 2050 in line with global benchmarks.” Cities’ progress matters significantly because according to ACEEE, urban areas currently account for more than 70 percent of greenhouse gas emissions globally.

Fortunately, cities aren’t going to have to do it alone. Numerous red and blue states are taking steps to reduce greenhouse gas. And experts point out that EPA has numerous tools in its toolbox to regulate emissions for power plants and other greenhouse gas emitters. Finally, while the Supreme Court’s decision likely means the Biden administration’s replacement for the CPP will be more modest than it prefers, it is likely to still act.

The National League of Cities (NLC) and the United States Conference of Mayors (USCM) joined together in an amicus brief in West Virginia v. EPA supporting the Clean Power Plan and issued the following statement from Clarence Anthony, NLC CEO and executive director, and Tom Cochran, USCM CEO and executive director:

“Local leaders are on the front lines of battling the climate crisis—but we can’t do it alone. Today’s announcement represents a major step back in our fight to keep our communities safe from the devastating effects of the climate crisis, including stronger and more frequent natural disasters, extreme temperatures, negative public health effects, and more. Many cities, towns, and villages will continue to work to reduce greenhouse gas emissions, but today’s decision leaves us working uphill against this threat.”

For more information: nlc.org/citiesspeak

Lisa Soronen has served as executive director of the State and Local Legal Center and has worked for the National School Boards Association and the Wisconsin Association of School Boards and has clerked for the Wisconsin Court of Appeals.