February 24, 2022

By Ramona du Houx

On February 28, 2022, the Supreme Court will hear a case brought by West Virginia, supported by 18 other Republican-led states, that takes aim at the Environmental Protection Agency’s (EPA) ability to issue strict regulations to curb pollution from fossil fuel-fired power stations.

“We cannot delay curbing greenhouse gas emissions and implementing solutions for a more equitable and just clean energy future. The EPA must retain its ability to use the Clean Air Act to defend the defenseless against the insidious dangers of toxins in the air caused by industrial pollution, ” said Alex Cornell du Houx, former Maine state Representative, Marine combat veteran, President and Co-Founder of Elected Officials to Protect America. “The petitioners are overtly attempting to get the Supreme Court to establish a broad precedent that would scrutinize and discredit protections for public health, safety and the environment on judicial review. The case should be dismissed.”

Petitioners in this case assert a legal theory invented by the Trump Administration that would gut EPA’s ability to rein in climate-disrupting carbon dioxide pollution from existing fossil fuel-burning power plants under section 111(d) of the Clean Air Act.

“The Clean Air Act is our primary federal air quality law — of bipartisan origins — intended to reduce and control air pollution nationwide. Without it, Los Angeles would still be full of unbreathable smog like when I was growing up,” said Los Angeles Councilmember Paul Koretz, Elected Officials to Protect America (EOPA) California Leadership Council, who was inspired into public service in part by the success of the Clean Air Act. “Federal agencies need to be able to take necessary action to protect public health. This case would define future federal action on climate change issues and, dangerously and shortsightedly, restrict our ability to combat the quickly-worsening climate crisis. The Supreme Court must decide in favor of all Americans, not just for corporate interests.”

West Virginia’s lawsuit argues that the EPA shouldn’t be able to issue rules that “are capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy” and claims that only Congress should decide on regulation of this scope.

“The petitioners and their allies aim to stop the EPA from enacting meaningful limits that would stop power plants from emitting 1.6 billion tons per year of climate-changing carbon pollution. They are asking the Court to strip the EPA ‘s ability under the Clean Air Act to issue meaningful safeguards against power plant carbon pollution,” said Debbie Sarinana. New Mexico State Representative Air Force Veteran, EOPA National Leadership Council Chair. “We’re in a Code Red for our climate and humanity. We need protections to keep industries from choosing profit margins over human life.”

While the petitioners represent coal plants there is no current EPA climate regulation on coal plants, meaning that there is no basis for the case. The Supreme Court shouldn’t decide things in the abstract, when there is no actual rule for states or industry to comply with.

“A ruling from the Court in favor would crush the authority of virtually every federal agency to carry out vital Congressional directives. It could send us back to the period that preceded the Great Depression, known as the Lochner era, when corporate power went largely unchecked and federal agencies had little authority to protect the public,” said Paul L. Evans, Oregon State Representative Major, USAF Major (Ret.), EOPA Leadership Council Co-Chair. “A ruling against the EPA would undermine the will of the people, a century of laws, and decades of legal precedent. This case threatens our nation’s ability to protect clean air, clean water, and our national security.”

The Biden administration EPA has stated that it is working to craft a new rule to advance safeguards for climate pollution from power plants. Entities will have the opportunity to litigate that rule once finalized.

“EPA has the authority, and duty to issue meaningful safeguards against carbon pollution from power plants. The Court’s decision in this case could severely undercut EPA’s power to protect public health and welfare by combatting the climate crisis. The Court should promptly dismiss this case without addressing the legal merits,” said Delegate Danielle Walker, Charleston, WV.

The irony is that the power industry is already shifting from coal to cleaner sources of power because of economics.

This past year, every region of the United States has experienced extreme weather with deadly storms, heat waves, floods, drought or wildfires made worse by the climate crisis. The window is closing for significant action to curb fossil fuel pollution that is dangerously heating the planet, with the last seven years being the hottest on record. According to a new report from NOAA, in the USA at least 700 people died during 20 extreme weather disasters in 2021, totaling over $20 billion in costs.