THE SUPREME COURT WILL AGAIN DECIDE ON CLIMATE CHANGE

The climate is changing faster than at any point in modern human history.[1] Earth’s average surface air temperature has increased by about 1.8 °F since 1900.[2] Over half of that increase has occurred since the mid-1970s.[3] Both human and natural causes influence Earth’s climate, but only human factors can account for the global surface temperature rise.[4] In fact, when climate models use only natural factors to simulate global temperatures, the simulations show little warming, and even slight cooling.[5]

All major climate changes, regardless of cause, are disruptive.[6] The most obvious example of climate changes is Earth’s historical ice age cycle – cold glacial periods followed by shorter warm periods.[7] Earth’s ice ages occurred slowly and were caused by changes in Earth’s orbit around the Sun.[8] But orbital changes in the past 250 years are not sufficient to account for the warming that is occurring.[9]

Scientists attribute the warming trend since the mid-1900s to the human-caused expansion of the “greenhouse effect.”[10] The greenhouse effect is the natural warming that results when gases in Earth’s atmosphere trap heat that radiates from Earth toward space.[11] The greenhouse effect is a “good thing” because it warms Earth to its average temperature of 59 °F.[12] But human activity is changing the natural greenhouse effect.[13] By burning fossil fuels (e.g., coal and oil), humans have increased the concentration of greenhouse gases (e.g., carbon dioxide, methane, and nitrous oxide) in the atmosphere.[14] In 2019, the carbon dioxide level was more than 40% higher than it was in the 1800s.[15] The natural processes that balance the greenhouse effect are too slow to compensate for the greenhouse gases that humans have added to the atmosphere.[16]

Climate change will not just warm Earth’s climate, it will also increase the frequency and intensity of extreme weather events.[17] This means Earth will experience more frequent and more intense heat waves, droughts, and wildfires.[18] A warmer atmosphere and warmer oceans will make the strongest hurricanes “more intense, produce more rainfall, affect new areas, and possibly be larger and longer-lived.”[19] Climate change has also caused sea levels to rise about eight inches since 1880 (when reliable record keeping began).[20] Sea levels are projected to rise an additional one to eight feet by 2100.[21] Higher sea levels will increase the damage and devastation from the storm surges and floods that result from tropical storms and hurricanes.[22]

            Immediately stopping human carbon dioxide emissions would not reverse climate change.[23] Atmospheric carbon dioxide returning to “pre-industrial” levels would take thousands of years.[24] The only way to reverse climate change is by removing greenhouse gases from the atmosphere (i.e., “negative emissions”).[25] Humans do not currently have the ability to achieve negative emissions. When we do, substantial reductions in carbon dioxide emissions will also be essential to reversing the effects of climate change.[26] But by reducing the flow of greenhouse gases into the atmosphere now, we may be able to avoid or limit some of climate change’s worst effects.[27]

            The U.S. Supreme Court granted West Virginia v. EPA certiorari in October 2021.[28] This case is a challenge from several states and coal industry interests on how the Environmental Protection Agency (EPA) regulates carbon emissions from coal plants under the Clean Air Act (42 U.S.C. §7401 et seq. (1970)).[29] The Clean Air Act is the comprehensive federal law regulating air emissions.[30] It allows the EPA to regulate emissions of hazardous air pollutants.[31] The petitioners are not challenging whether the EPA can regulate greenhouse gas emissions.[32] The Court already established in Massachusetts v. EPA (2007) that greenhouse gas emissions are covered by the Clean Air Act.[33] Instead, the petitioners want the Court to limit the EPA’s authority to regulate greenhouse gases emitted from power plants.[34] This case stems from 2016, when the Court blocked a key part of the Clean Power Plan, a President Obama administration EPA rule intended to limit carbon emissions and reduce global warming.[35] The rule was never implemented.[36] The Trump administration subsequently repealed the rule and replaced it with a weaker rule.[37] That rule was challenged and it was vacated in American Lung Association v. EPA (D.C. Cir. 2021).[38] The D.C. Circuit wrote that “[t]he EPA has ample discretion in carrying out its mandate.”[39] And that the EPA “may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”[40]

            The EPA under the Biden administration has not yet replaced the rule, and the administration argues that it is premature for the Court to issue an opinion before the EPA creates a new rule.[41] The Biden administration is asking for the Court to dismiss the case because there is no rule, rather than asking the Court to affirm the D.C. Circuit’s opinion.[42] Despite there being no rule, the case has the potential to limit the EPA’s authority to regulate carbon emissions under the Clean Air Act.[43]

            Though the Court’s ruling essentially ended the Clean Power Plan, the plan’s targets were still achieved more than a decade before they would have been required.[44] Similarly, the Court’s ruling in West Virginia v. EPA will not prevent the free market from continuing the coal industry’s decline.[45] Even without the EPA placing limits on carbon emissions, cheap fracked gas and subsidized renewable energy have priced-out energy derived from coal.[46] Apple, Amazon, and Tesla (as well as other companies) filed a brief declaring the EPA’s support is “necessary to avoid the worst impacts of climate change.”[47] Instead of looking to the past, siding with the coal industry, and contributing to climate change, the Court needs to look to the future and at least allow the EPA to create a new rule to regulate power plant carbon emissions in an attempt to slow down the harm climate change will cause.

[1] Alexa Jay et al., U.S. Global Change Research Program, Fourth National Climate Assessment 34 (David Reidmiller et al. eds., 2018) https://nca2018.globalchange.gov/chapter/1/.

[2] Nat’l Acad. of Sci., Climate Change: Evidence and Causes: Update 2020 3 (2020) http://nap.edu/25733.

[3] Id.

[4] Id. at 5.

[5] Id.

[6] Id. at 9.

[7] Nat’l Acad. of Sci., Climate Change: Evidence and Causes: Update 2020 9.

[8] Id.

[9] Id.

[10] The Causes of Climate Change, NASA, https://climate.nasa.gov/causes/ (last visited Feb. 27, 2022).

[11] Id.

[12] Melissa Denchak, Greenhouse Effect 101, Nat. Res. Def. Fund (July 16, 2019), https://www.nrdc.org/stories/greenhouse-effect-101.

[13] The Causes of Climate Change, NASA, https://climate.nasa.gov/causes/ (last visited Feb. 27, 2022).

[14] Causes of Climate Change, EPA, https://www.epa.gov/climatechange-science/causes-climate-change (last visited Feb. 27, 2022).

[15] Nat’l Acad. of Sci., supra note 2 at 6.

[16] Id.

[17] Id. at 15 (“Scientists typically identify these weather events as “extreme” if they are unlike 90% or 95% of similar weather events that happened before in the same region.).

[18] Id.

[19] Id.

[20] The Effects of Climate Change, NASA, https://climate.nasa.gov/effects/ (last visited Feb. 27, 2022).

[21] Id.

[22] Nat’l Acad. of Sci., supra note 2 at 15-16.

[23] Id. at 22.

[24] Id.

[25] Id.

[26] Id.

[27] Is it Too Late to Prevent Climate Change?, NASA, https://climate.nasa.gov/faq/16/is-it-too-late-to-prevent-climate-change/ (last visited Feb. 27, 2022).

[28] Granted/Noted Cases List, Supreme Court of the United States, https://www.supremecourt.gov/grantednotedlist/21grantednotedlist (last visited Feb. 27, 2022).

[29] Rachel Cleetus, The Supreme Court Could Block Climate Change Protections, Scientific American (Feb. 23, 2022), https://www.scientificamerican.com/article/the-supreme-court-could-block-climate-change-protections/.

[30] Summary of the Clean Air Act, EPA, https://www.epa.gov/laws-regulations/summary-clean-air-act (last visited Feb. 27, 2022).

[31] Id.

[32] Id.

[33] Id.

[34] Robert Barnes & Dino Grandoni, In EPA Supreme Court case, the agency’s power to combat climate change hangs in the balance, Wash. Post (Feb. 25, 2022), https://www.washingtonpost.com/politics/2022/02/25/supreme-court-epa-west-virginia/.

[35] See Robert Barnes & Steven Mufson, Supreme Court freezes Obama plan to limit carbon emissions, Wash. Post (Feb. 9, 2016), https://www.washingtonpost.com/politics/courts_law/supreme-court-freezes-obama-plan-to-limit-carbon-emissions/2016/02/09/ac9dfad8-cf85-11e5-abc9-ea152f0b9561_story.html.

[36] Robert Barnes & Dino Grandoni, supra note 34.

[37] Rachel Cleetus, supra note 29.

[38] Id.

[39] Am. Lung Ass'n v. EPA, 985 F.3d 914, 951 (D.C. Cir. 2021).

[40] Id.

[41] Robert Barnes & Dino Grandoni, supra note 34.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Robert Barnes & Dino Grandoni, In EPA Supreme Court case, the agency’s power to combat climate change hangs in the balance.