In Water policy

Court’s Climate Ruling Will Have Far Reaching Impact

On the last day of its term, the Supreme Court restricted the Environmental Protection Agency’s (EPA) ability to address climate change under the Clean Air Act (West Virginia vs. EPA). As important – the reasoning the Court used will undermine our federal agencies in doing their jobs to protect public health and the environment going forward.

The ruling addressed the use of a specific provision of the Clean Air Act to reduce carbon emissions from power plants, finding that the EPA could not require power plants to shift from one power generating source to another, less harmful generating source. The EPA still has many ways to use the Clean Air Act to address greenhouse gas emissions and climate change, but this one approach has been taken off the table.

Much like the ruling in Dobbs vs. Jackson Women’s Health Organization restricting women’s rights and reproductive justice, this decision turns its back on decades of precedent, in this case precedent that supports federal agencies in implementing federal law across areas including public health, the environment and consumer protections. Congress and the courts have long recognized the need to delegate substantive rulemaking to agencies with expertise in specific areas. All agencies must follow required detailed rulemaking processes involving public participation requirements.

The conservative Court majority, however, expanded a narrow doctrine to claim that agencies need specific and express authority from Congress to take regulatory action on “major questions.” This effectively shifts power to the Court. Justice Kagan, in the dissenting opinion, writes that “[T]he Court appoints itself, instead of congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening.”

Given the intense flooding and droughts we are experiencing across the country, addressing climate change is critical and there is much that must and can be done to cut climate pollution and center communities  in identifying solutions to adapt to existing harms. Still, this is another troubling decision and demonstrates the Court’s willingness to disregard public and environmental health.

The scope of the Clean Water Act, for example, will be before the Court this fall in the case Sackett vs EPA. Already over 100 environmental and community groups have filed amicus briefs in support of the longstanding interpretation of this landmark law that protects our rivers, streams and drinking water, urging the court not to turn back the clock to dirtier water.

As Rebecca Traister writes in The Necessity of Hope, while we mourn and rage so much right now, we also “go forward with the will of those who came before, and those who have never stopped putting one foot in front of another, to some finer tomorrow, distant but always possible.”

Here are some ways we’re trying to do that – send us yours:

  • Build support for clean water – the Clean Water for All Coalition is gathering stories about clean water and local waterways to build public support for water protections ahead of the Sackett case. Please indicate on this form if you would be interested in sharing your story via social media, letters to the editor, or public platforms like Voices for Clean Water. Learn about how states are strengthening Clean Water Act protections through our State Policy Hub.
  • Take Action on Climate – learn about the many key actions Congress and the Biden Administration can take to act on climate now.
  • Join our partners at PolicyLink to work together for a democracy that is inclusive and works for all.

Further Resources:

  • Nicole

    Excellent explanation of the ramifications of this decision. If Congress was not divided, it could get us back on the right side of history. Unfortunately, it seems stuck. Every vote does count. This is why.

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