In Part 1, I explained an alternative approach to looking at Supreme Court cases that don’t go your way. Rather than just be angry and go protest, it’s always a good idea to read the case, put it in the wider context of US government, and find whatever upsides you can. Then, formulate strategies to use those upsides to keep working on the problem.
What WV v EPA Really Says (Continued)
Now that we have an idea of how federal agencies work (in short, they’re bound by laws that Congress creates and subject to constitutional limits that courts enforce), we can look at the meat of WV v EPA.
It really comes down to one thing: 42 US Code § 7411. This law is the law that the Obama administration, and more recently the Biden administration, relied on to justify the Clean Power Plan. The EPA argued that the law gave it authority to set operating standards for power plants to minimize carbon dioxide emissions (this is true), and then decided to set an operating standard requiring coal power plants to shift some of their generating capacity away from coal and toward cleaner alternatives, like methane, nuclear, or renewables.
Obviously, states that rely on coal for a big part of their economy (West Virginia) aren’t happy about this. So, they took a deeper look at the relevant law (linked above) and similar laws. They came to the conclusion that the law only allowed EPA to regulate emissions at the power plant level, and not at the grid level. So, they have statutory authority to regulate individual power plants, but no authority from Congress to force coal plants to switch some of their generating capacity to other plants on the same grid (the core of the Clean Power Plan).
The Supreme Court agreed with this assessment, and struck down the Clean Power Plan.
Why There’s Room For Optimism Here
It’s important to note that the Supreme Court didn’t say that Congress couldn’t regulate greenhouse gases. They only said that Congress didn’t give the EPA authority to use the Clean Power Plan’s strategy for the reduction of greenhouse gases. So, that leaves room for many, many other strategies to reduce greenhouse gas emissions.
Basically, any strategy that involves Congress taking action or EPA taking action that relies on some other statutory authority is still perfectly acceptable under the opinion.
Ways The US Government Can Get There
This upside gives the government several options for regulating greenhouse gases from power plants.
The obvious option would be for Congress to handle it. It would be as simple as amending the relevant statute to define “technological system of continuous emission reduction” to include grid-level technological changes and not just regulation at the power plant level. This would address the central argument in the WV v EPA opinion, be fully in compliance with it, and allow EPA to implement the Clean Power Plan.
Obviously, this won’t be easy to accomplish in Congress (getting a certain West Virginia senator onboard will be particularly hard), but that doesn’t mean that’s the only way to get there. It may be possible to negotiate other ways Congress can empower the EPA to clean up power plant emissions.
It’s also important that the EPA has many, many laws giving it various powers. The EPA’s lawyers and the lawyers working for special interest groups could take a fresh look at all of the relevant statutes and see if there are other powers that could be used to clean up the power grid. Plus, the EPA could work with state governments and use federalism to help tackle the problem. This is a task that’s beyond me, but there are people who are very good at hunting for powers and loopholes just like they did with the first Clean Power Plan.
Thinking Outside The Government Box
It may be possible that government gridlock is just too powerful to get a new law through, and that there are no existing laws that could be used to empower the EPA to clean up the grid. But, that doesn’t mean we have no options to clean up the grid with or without government help. Private industry and the voice of customers might just have to drag the power grid into the 21st century with coal mines and Republicans kicking and screaming.
Really, that’s what we’re doing here at CleanTechnica, and that’s what our readers are doing regularly on social media and in person. By showing the public the benefits of electric vehicles, home solar and battery storage, micromobility, and other clean technologies, we’re moving the needle without threatening anyone with armed agents of the state kicking in any doors at 3 AM.
Whether grid operators want to keep buying coal and even methane power, they’ll buy whatever their customers want to buy, or they’ll have customers just quit buying. Paying a little extra for clean power, community solar, home rooftop solar, home battery storage, and even vehicle-mounted solar all have their place in displacing fossil fuels. Getting the word out and getting homeowners, car owners, multi-family property owners, and businesses to adopt clean technology gets us there.
Don’t Give Up
The most important thing to keep in mind is that you can’t give up or go into a pity party just because some court decision doesn’t go your way. There’s always a way to keep fighting.
If the Supreme Court rules against something meant to clean up the power grid, we have to keep putting pressure on other parts of the government to find other ways to push for a cleaner grid. If SCOTUS isn’t cool with something, do something else. We can’t have legislators afraid to legislate and regulators afraid to find other (lawful) ways to regulate.
If they won’t do their jobs, we don’t have any choice but to clean up the grid without their “help.” We already have all of the technological tools to do this, and we need to keep doing it. Sure, it’ll cost us something, but even if climate change was 100% made up, we’d end up with better national security, better family preparedness, and more control over our homes.
Whether you’re a Republican, Democrat, or something else, there’s no real argument against individual action here, so we can’t embrace cowardice and decide the fight is over just because government is too dysfunctional.
Featured Image: The US Supreme Court building, image by US Senate Democrats.
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