The Supreme Court just granted review of an important climate change case involving the EPA’s authority to limit pollution from power plants. That will be briefed over the next few months and heard by the high court this term. We anticipate leading businesses will be aligned with the Environmental Defense Fund in supporting EPA’s authority to address climate pollution. That signals something about the importance of nonpartisan partnering with corporations to solve real problems.
Whenever you show up locked arm-in-arm with science, industry, and an environmental organization, it’s powerful. It proves that interests are common and that a resilient and sustainable environment benefits everyone. I want to believe that this particular court will see that there’s a lot of power in that. But it’s hard to predict the outcome of things right now. I think the big challenge going forward is that we’re now dealing with a very different Supreme Court than we have in the past.
At the Environmental Defense Fund, our Legal Advocacy Team, led by EDF’s Vickie Patton, scrutinizes our advocacy for legal durability and consults with outside legal experts who can help us think in a fresh and clear-eyed way about legal risks in the context of a 6-3 Supreme Court. The approach is all about changing mindsets, about having a long-term, resilient goal in every aspect. Today’s win has to translate into tomorrow’s habits, whether they are legal habits, cultural habits, or business habits. If they don’t translate to that, then a victory isn’t going to have the long-term effect everyone is after.
I think part of moving forward is not just winning the case at the Supreme Court. It’s not just influencing regulators at the federal level. It’s also setting expectations with the state, with the people, and with corporations. If you have enough layers that are added to this, then change becomes unavoidable.
Are there any lessons from recent Supreme Court decisions that can help us predict how the court will address challenges to the Biden administration’s global warming reduction efforts?
CLIMATE
Interview by Emily Greenhalgh
Professor Steven Ferrey
C.M. Tokë Vandervoort JD'91
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Q&A with C.M. Tokë Vandervoort JD'91
There was a trio of recent Supreme Court decisions involving the Environmental Protection Agency (EPA) that can tell us something quite interesting about the prospects of the Biden administration’s climate agenda. All of these decisions involved the EPA trying to limit climate impacts as part of Obama-era strategies.
Chevron v. NRDC, a famous case from the 1980s and the most-cited Supreme Court decision every year in the last 30 years, gives deference to decisions made by administrative agencies, specifically the EPA. These three recent Supreme Court cases chipped away and cut back at that discretion as it relates to the EPA in climate regulations.
In 2014, the Court ruled that while the EPA could regulate carbon emissions from power plants and other large stationary sources of significant pollution, it did not have congressional authority to regulate smaller sources of carbon emissions such as schools, apartment buildings, shopping centers, or any emitters of less than 100 tons per year of carbon. Next, a 2015 Supreme Court decision ruled that the EPA must consider the costs when enacting carbon regulations even if the congressional Clean Air Act statute didn’t expressly require that to be done. In 2016, the Supreme Court enjoined the entire Clean Power Plan, which was the Obama administration effort to limit carbon emissions principally from coal-fired power plants. For the first time anyone could remember, the Supreme Court froze an entire program—soup to nuts—not just the part subject to the legal challenge. That injunction survived into the Biden administration.
Those three decisions tend to cut back executive branch authority to fill in the gaps related to carbon-related emissions. The Supreme Court just agreed to hear a case in 2022 looking at the Clean Power Plan again, and an expressed concern is that the Chevron doctrine of deference to the executive branch on climate matters could be whittled back even further. In the larger picture, I think the other big challenge to the Biden plan is that no matter what the United States and the European Union do on climate, there must be an immediate worldwide effort now to reduce carbon emissions dramatically, which was not evident at the November 2021 Glasgow (United Nations climate change) summit on this issue. Without immediate massive cooperation from Asian countries, ultimately we won’t be able to achieve carbon emissions targets to sufficiently constrain rapid climate warming.
The U.S. alone can’t fix world climate.
Images from the top: Getty Images, courtesy of C.M. Tokë Vandervoort, Michael J. Clarke
Q&A with Professor Steven Ferrey
Professor Steven Ferrey is an international energy attorney specializing in energy law and policy. He is a Contracts and Environmental Law professor at Suffolk Law and has served as a legal adviser to the United Nations and World Bank on climate law.
C.M. Tokë Vandervoort JD'91 is chief legal officer at the nonprofit Environmental Defense Fund. The environmental advocacy group works with its stakeholders to address environmental challenges, including climate change, ecosystem restoration, sustainable fisheries, and human health.