Late last month, the U.S. Supreme Court announced its decision on West Virginia v. EPA, declaring the Environmental Protection Agency (EPA) did not have the authority outlined in former President Obama’s Clean Power Plan to mandate a transition away from fossil fuels and toward renewable energy.
The ruling nixed an important process in shifting to a renewable energy landscape called “generation shifting.” In short, energy producers were required to achieve a certain level of emissions reductions by phasing out fossil fuels, adding more renewables to their portfolios and/or participating in carbon trading programs.
Critically, generation shifting works—emissions have gone down and energy companies can do so economically. In fact, investing in renewables is an eminently cheaper way to reduce emissions than instituting emissions control measures at individual facilities, according to the Environmental Defense Fund.
Yet, the 6-3 conservative Court majority says the generation shifting aspect of the Clean Power Plan cannot be enforced unless Congress says so.
Wrote Chief Justice John Roberts in the majority opinion: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ … But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”
In her dissenting opinion, however, Justice Elena Kagan disagreed (obviously):
“The majority says it is simply ‘not plausible’ that Congress enabled EPA to regulate power plants’ emissions through generation shifting. … But that is just what Congress did when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants.
“The ‘best system’ full stop—no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the ‘best system’—the most effective and efficient way to reduce power plants’ carbon dioxide emissions.”
The ruling was a blow to, well, anyone who gives a shit about clean air and living on an inhabitable planet. But while the ruling restricts the EPA from mandating generation shifting at a federal level, it can still enforce emissions caps at a level reflecting “the application of the best system of emission reduction”… as long as that system isn’t generation shifting, even if it is the best method. (And, not for nothing, plenty of environmentalists have criticized generation shifting because it doesn’t remove fossil fuels from energy portfolios quick enough.)
The ruling, too, does not explicitly affect state regulations on energy providers. It does, however, create a scary precedent. The Court majority invoked the heretofore unestablished “major questions” doctrine, which—we have to guess, since it’s new—is a philosophy that any regulation with major economic or political consequences requires the express approval of Congress. In short, no one really knows how this subjective metric will be applied to future environmental concerns.
So given that states have authority to determine their own emissions reduction targets and methods, New Jersey’s goal of reducing greenhouse gas emissions by 50% from 2006 levels by 2030 (and 80% by 2050) is safe, for the time being.
However, there are two major considerations in light of the ruling: 1) air pollution travels and New Jersey alone cannot reverse the effects of global warming; and 2) it’s more important now than ever for the state to permanently put a ban on new fossil fuel projects.
Regarding the first, there’s not much we can do except lobby lawmakers to enforce generational shifting via Congressional legislation. Too, New Jersey can be an example that the energy sector can thrive while also not destroying the planet.
“New Jersey has the regulatory authority to be more stringent than the EPA and our regulatory authority to regulate carbon pollutants is still very much on the books,” says Environment New Jersey Director Doug O’Malley. “Our problem is that New Jersey is not an island and the air pollution from fossil fuel plants that drift into the state from the Midwest still foul our air and climate and pollute New Jersey’s resident lungs.”
Regarding the second, that’s a little dicier. Though Gov. Phil Murphy, who denounced the Court decision, has undoubtedly pushed for more renewable energy—by setting emissions goals, enacting environmental justice measures and incentivizing investment in renewables, as in the offshore wind project—he’s also being sued by a coalition of environmental groups for not doing enough to curb greenhouse gas emissions.
A number of new fossil fuel projects in New Jersey are currently in planning stages—a proposed NJ Transit plant that may or may not burn fossil fuels, a fossil fuel burning plant from the Passaic Valley Sewerage Commission, a power plant in Woodbridge, several pipeline expansions, as well as the allowance of liquefied natural gas via rail to an export station in New Jersey.
Most, if not all, of the proposed plants would be sited in or otherwise impact environmental justice communities—the state is currently holding forums for how best to ensure environmental justice under the new law, but has stopped short of saying it would ban new fossil fuel projects.
Ultimately, if the Supreme Court is going to allow states to determine emissions reduction methods, then a handful, or more, of them are going to do the bare minimum. As a state that professes to reach renewable energy goals, New Jersey could be a leader in the country if it bans new fossil fuel projects. It has to want that, though.
“The climate crisis won’t wait even for six justices of the nation’s highest court,” says O’Malley. “The time for action on the state level is now.”