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Supreme Court Rebuke Weighs Against Clean Air Act as Climate Law

July 26, 2022, 9:30 AM

The Clean Air Act is a regulatory success story that has dramatically reduced U.S. air pollution, but a stinging Supreme Court rebuke constrains efforts to use the 50-year-old statute on its own to aggressively target climate change.

Immovable legislators, shrinking clean air advancements, worsening climate impacts, and debilitating legal challenges are all chipping away at the Clean Air Act’s efficacy to battle climate pollution, according to some policy experts.

The June majority opinion in West Virginia v. EPA took aim at the agency’s ability to use Section 111 of the air law for grid-wide carbon emissions reduction, a key component of fighting climate change. Justices insisted that Congress must specifically designate clear authority on the issue.

The statute hasn’t been amended since 1990, and partisan deadlock in a narrowly divided Congress means lawmakers are unlikely to eke out amendments in the near future to specify presidential authority to address carbon for stationary sources of emissions.

Carbon mitigation “doesn’t fit within the structure of the current Act,” ArentFox Schiff LLP partner Jane Montgomery said. “The Act could be amended fairly simply to just simply allow it, but I don’t think Congress would.”

Without Climate in Mind

The Clean Air Act has made enormous progress on U.S. air quality since its implementation in 1970. Most recent EPA air quality data has clocked a 78% decrease in most major pollutants over the last 50 years.

For the most part, the act is doing its original job targeting local pollutants, which may undercut the possibility for congressional amendments to more comprehensively include greenhouse gas mitigation.

There are a lot of indirect benefits to be had from stricter regulation of local air pollutants like particulate matter and ozone, but greenhouse gas mitigation is not the Clean Air Act’s core “purpose,” according to Edson R. Severnini, policy and economics assistant professor at Carnegie Mellon University.

Solely using the Clean Air Act for climate policy could lead to a lot of industry uncertainty and court challenges, Severnini told Bloomberg Law. “It would be probably better—or much better—to actually tackle the problem directly,” Severnini said, referring to broad congressional policy.

Miles Keogh, executive director of the National Association of Clean Air Agencies, still sees the Clean Air Act as a climate statute, but noted it was not originally crafted with climate in mind.

“That’s like how my car can be used as a ride-sharing vehicle, even though it wasn’t designed and painted to work like a taxi,” Keogh said. “The West Virginia decision certainly defines more specifically how the Clean Air Act can be used as a climate act—more limits, but still powerful and useful.”

‘Far Better’ Options

Georgetown law professor William Buzbee agrees that the Clean Air Act remains a powerhouse tool for emission mitigation, especially from vehicles. But any creativity once available to the agency would be checked swiftly by the new precedent.

Legislation would be a “far better” option, according to Buzbee.

Buzbee noted that Congress could also pass a small Clean Air Act amendment that could broaden EPA authority for “cost-effective, market-based” climate tools. “Such a targeted amendment would basically overrule West Virginia, plus would be met with applause by environmentalists and most industry,” he said.

Progressives in Congress have offered such solutions following the court’s ruling.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) this month offered legislation (H.R. 8395) that would allow the EPA to identify a best system of emission reduction for purposes of a standard of performance, which was at the crux of the opinion.

But Republicans don’t want to grant the agency that much authority, and the bill is unlikely to advance.

All-of-Government

Montgomery said Biden’s all-of-government approach to climate is a more comprehensive way forward than reliance on Clean Air Act regulations. And the administration seems to be moving forward with the idea now that plans to reduce emissions have hit a wall in Congress and the Supreme Court.

President Joe Biden announced last week that his administration would be rolling out a series of climate actions following a month of setbacks from Congress and the high court.

So far, he’s announced new funding and plans for heat resiliency and offshore wind efforts, all through the Federal Emergency Management Agency, the Department of Health and Human Services, and the Interior Department.

But those efforts, too, could be stymied by litigation.

The majority opinion in West Virginia v. EPA practically announced an “open season” for litigation over clean air rulemaking, and executive power writ large, according to Earthjustice senior climate attorney Hana Vizcarra.

“They’re inviting people to challenge rules, and they’re giving them a broad base in which to try to do so,” she told Bloomberg Law

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com