The decision overturning Roe v. Wade ended a half century of constitutional protections for abortion rights, and some legal observers suggest Friday’s opinion could also signal a willingness by the U.S. Supreme Court’s conservative majority to drastically curtail federal efforts to fight climate change.
“This decision shows that they are willing to throw out what most considered to be long-established law,” said Jonas Monast, assistant professor and director of the Center on Climate, Energy, Environment and Economics at the UNC School of Law. “That could open the door to many other issues that we considered long settled by the court.”
Environmental advocates are now anxiously awaiting a high court decision expected in a matter of days in West Virginia v. Environmental Protection Agency, which challenges the EPA’s authority to regulate carbon dioxide emissions from U.S. power plants. Such rule-making is considered crucial because the energy sector is the nation’s second-largest source of greenhouse gases.
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The case is tied to an April 2021 legal challenge from coal mining companies and more than a dozen Republican state attorneys general who argued the Clean Air Act — adopted three years before the original Roe v. Wade decision — does not permit the agency to set regulations that drastically change how the nation’s electricity is produced.
Strict rules governing carbon dioxide — the leading contributor to climate change — are critical to President Joe Biden’s goal of reducing U.S. greenhouse gas emissions by 50%, compared to 2005 levels, by 2030.
Just as the court chose to overturn a half century of legal precedence established by Roe v. Wade while ruling on Dobbs v. Jackson Women’s Health Organization, environmental groups now wonder whether the conservative majority will follow a similar path in deciding West Virginia v. EPA.
They cite two cases in particular.
Chevron v. Natural Resources Defense Council
The court’s 1984 decision in Chevron v. NRDC, which declared that the EPA has broad authority to enact and enforce regulations, settled what is considered one of the most influential administrative law cases of the past 50 years.
The historic 1970 Clean Air Act, which passed through Congress with nearly unanimous Democratic support and backing from slightly less than half of Republicans, established the EPA.
President Richard Nixon was among the legislation’s GOP supporters.
“The time has come for man to make his peace with nature,” Nixon said at the time. “These problems will not stand still for politics or for partisanship.”
The Clean Air Act set broad parameters in laying out the EPA’s regulatory authority. That was done intentionally, legal experts note, because Congress had no way of knowing in 1970 what environmental issues the nation would face — such as climate change tied to carbon pollution — in years to come.
More than a decade later, the court ruled in the Chevron case that when “such a gap is implicitly left by Congress,” the agency’s interpretation prevails, not the courts’.
That foundational finding is now potentially at risk, said Scott Schang, a law professor and director of the Environmental Law and Policy Clinic at Wake Forest University.
“It’s clear several of the justices are angling to limit or overrule Chevron, which will likely mean less deference to expert agencies and more reliance on judges, who have been known to botch environmental law cases when interpreting laws,” he explained.
Samuel Alito, who wrote the majority opinion in Friday’s Dobbs ruling, has made public comments that signal skepticism of the EPA’s role in addressing climate change.
In a 2017 speech, he offered an analysis of greenhouse gas emissions that both perplexed and terrified environmental advocates:
“Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting. When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter — basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.”
Massachusetts v. EPA
Alito’s explanation contradicted the high court’s ruling three years earlier in Massachusetts v. EPA, which found that carbon dioxide is a pollutant within the scope of the Clean Air Act and EPA regulations.
Alito dissented from that 5-4 decision, and some legal observers fear that he and his conservative colleagues will use the current West Virginia v. EPA case to weaken the federal government’s climate reach.
“I expect they will either overrule Massachusetts v. EPA or so strictly construe the Clean Air Act that the EPA will not be able to regulate greenhouse gases,” predicted Bill Blancato, a Winston-Salem attorney and regional coordinator for Climate Lobby. “The uncertainty of regulatory solutions is why we need a legislative solution to reduce greenhouse gas emissions.”
The most direct result of Friday’s ruling is that legal strategies to address climate change likely will be more difficult to employ successfully, said Wake Forest’s Schang.
“Some groups are trying to get courts to recognize a public-trust duty of government to protect the climate for today’s and tomorrow’s children,” he noted. “Those efforts have already largely been rebuffed by courts, but this makes it clear such an expansion of rights or doctrine has no chance before this court.”
Schang agreed with Blancato that if the high court claws back the EPA’s regulatory authority, legislation will be the most effective way to establish federal emissions standards and other climate related initiatives.
“Congress and the voters who show up to elect them are the ones responsible for making law,” Schang said. “That has always been true. If you don’t like how the court ruled, vote. If you think there should be a right to a healthy environment in our constitution, as there is in the vast majority of other constitutions, vote. If you don’t vote and others do, well, now we see what happens.”
He added that the court now has a 6-3 conservative majority because Donald Trump was elected president in 2016, not Hillary Clinton.
“Voters pick the president, who appoints the justices,” Schang concluded. “There you have it.”