SCOTUS ruling on West Virginia vs. EPA

By: Caitlin McConaghy, OSI Intern

On June 30th, the Supreme Court of the United States (SCOTUS) gave a ruling on West Virginia vs. EPA, stripping the EPA of its power to regulate coal-fired and natural gas power plants. The case was unique and complex, dating back to 2015. Its outcome has dealt a major blow to current and future climate action in the US.

Background

The Clean Power Plan, introduced under former President Obama, originally established national standards regarding carbon emissions from the power sector. Citing Section 111(d) of the Clean Air Act, it also gave the Environmental Protection Agency (EPA) authority to regulate power plants, should a state fail to do so.1 The goal was for the power industry to achieve a 32% reduction in carbon pollution levels from a 2005 baseline by 2030.2

In response, coal companies, along with many Republican attorneys general, filed a lawsuit, arguing that the EPA was overstepping its authority. The case was ultimately dismissed following the repeal of the Clean Power Plan and subsequent adoption of the Affordable Clean Energy rule–a much less ambitious climate policy–under the Trump Administration. This new rule, however, faced its own legal challenges and was struck down by the D.C. Circuit Court of Appeals, which remanded to the EPA the responsibility of implementing new measures against carbon emissions.1 The current EPA, now under the Biden administration, has yet to do so. West Virginia led multiple states, including Georgia, to petition SCOTUS to review the D.C. Circuit’s decision, even though there were no EPA regulations in effect. They argued that Section 111(d) of the Clean Air Act does not give the EPA the authority to regulate power plants, instead arguing that this authority should be given to Congress.3

 

Implications

With its new conservative supermajority, the Court’s ruling still empowers the EPA to regulate emissions as pollutants; however, this authority is now severely restricted. The EPA can no longer implement broad regulations that force the closure of power plants or utilities to transition to clean energy.4 The Court’s decision is controversial because there was not a regulation in place to rule on and federal courts do not issue advisory opinions. Despite this, a precedent has been set–one that could contribute to global temperatures rising past the point of no return.

The implications of this decision are especially severe for southern states like Georgia, highlighting ongoing issues of climate injustice and inequity. For example, the Southeast experiences more billion-dollar climate disasters than any other region in the US.5 With the Southeast pervasively ranking with some of the lowest rates of economic mobility, many people cannot afford to move out of the region to escape the financial consequences of these climate disasters.5  Unfortunately, this translates to poor health outcomes for communities in this region, which already hosts seven of the country’s top ten least healthy states.5

 

If the EPA can’t make regulations for certain parts of electricity generation (e.g. coal-fired power plants), who in Georgia can?

Georgia’s Public Service Commission (PSC) is an elected body comprised of five commissioners, each of whom serve six-year terms. Part of their responsibilities includes regulating how much Georgians pay for utilities like electricity and natural gas. In terms of electricity, the PSC can only regulate investor-owned power companies; therefore, the PSC regulates Georgia Power, which is the only investor-owned power company in the state.6 With Georgia Power serving the most people of all electric service providers in the state, decisions by the PSC can have a widespread impact.

There are some ways in which Georgians can influence the PSC, affecting the price and operations of electricity in their state. Importantly, there is an upcoming election for two of the five seats on the PSC. In District 2, Patty Durand (Democrat) and Colin McKinney (Libertarian) are running against Republican incumbent Tim Echols. Both Echols and Durand are proponents of expanding renewable energy, namely solar. Durand, however, opposes the expansion of Plant Vogtle, Georgia’s nuclear power plant, citing costly energy bills for Georgians; Echols, on the other hand, is a major supporter.7,8 McKinney’s platform stands on the foundation of “ending monopolies” and “advocating for the consumer”.9 In District 3, Shelia Edwards (Democrat), who has vocalized her commitment to investing in renewable energy and ensuring the safe disposal of energy waste, is running against Republican incumbent Fitz Johnson.10 Having been named to the PSC in 2021 by Governor Kemp, Johnson’s main priority is helping Georgians get the best deal on utilities.11 Voting for the two PSC seats is a statewide process and the general election will take place on November 8, 2022.

Georgians may also make their voice heard through community coalitions that focus on energy. For example, the Sierra Club, a grassroots environmental organization at the forefront of the clean energy movement, has a chapter in Georgia. They are organizing a rally at Atlanta’s City Hall on Thursday July 14, 2022, during which participants will have the opportunity to speak with PSC representatives about the energy landscape in Georgia. The main point of contention will be the Georgia Power Integrated Resource Plan (IRP) which determines how much coal, natural gas, solar, and other resources will be utilized for power production by Georgia Power; the plan is updated every three years. The PSC and Georgia Power reached a stipulation agreement in June regarding the IRP, which is pending approval, and time is running out to advocate for a more aggressive transition to renewables. If you would like to see Georgia Power embrace more solar and energy efficiency programs, you can also file a complaint or comment to the PSC here.

 

[1] https://today.law.harvard.edu/scotus-preview-west-virginia-v-epa/

[2] https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html

[3] https://www.supremecourt.gov/DocketPDF/20/20-1530/176915/20210429133443663_2021.04.29%20-%20West%20Virginia%20v.%20EPA%20Petition.pdf

[4] https://www.nytimes.com/2022/06/30/climate/biden-climate-action-epa.html

[5] https://psequity.org/wp-content/uploads/2022/06/Statement-on-West-Virginia-v-EPA-06302022.pdf

[6] https://psc.ga.gov/about-the-psc/

[7] https://www.pattyforpsc.com/meet-patty/

[8] https://psc.ga.gov/about-the-psc/commissioners/tim-echols/

[9] https://www.mckinney4ga.com/

[10] https://electshelia.com/about

[11] https://friendsforfitz.com/

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