Clean energy opportunities in a time of crisis

Democratic senators at last week’s confirmation hearings focused largely on how Judge Amy Coney Barrett might rule against the Affordable Care Act, reproductive rights, and voting rights. Climate change drew far fewer questions.

When asked by Sen. Kamala Harris (D-Calif.) whether “climate change is happening and threatening the air we breathe and the water that we drink,” Judge Barrett dismissed the question as too “politically controversial” to answer. However, Judge Barrett’s judicial philosophy, more than her unwillingness to acknowledge settled aspects of climate science, could put environmental regulations in jeopardy.

Judge Barrett clerked for Supreme Court Justice Antonin Scalia and has adopted his textualist approach to the law. “His judicial philosophy is mine, too — a judge must apply the law as written,” Judge Barrett said at her appointment ceremony.

Justice Scalia was deeply skeptical of the Environmental Protection Agency’s powers under the Clean Air Act — the landmark bill that underlies most emission regulations in the United States. When the Supreme Court ruled in 2007 in Massachusetts vs. EPA that the Clean Air Act obligates the EPA to regulate greenhouse gases, Scalia signed Chief Justice John Roberts’ dissent and wrote his own. Justice Ruth Bader Ginsburg joined the majority in that 5-4 ruling. 

Today, only one of the justices from that majority, and three of the dissenters, remain on the Supreme Court. Before joining the Supreme Court, Judge Brett Kavanaugh wrote an appellate court decision overturning hydrofluorocarbons’ EPA regulations. 

Adding a new justice hostile to environmental regulation could provide a fifth or sixth vote to overturn Massachusetts vs. EPA. Even without overturning that ruling, a conservative Supreme Court could constrict the deference it provides EPA to regulate greenhouse gases under the Clean Air Act. 

The court could also limit its interpretation of who has the standing to sue to seek tougher action on climate. Judge Barrett has already written two majority opinions for the U.S. Court of Appeals for the 7th Circuit limiting who can sue to enforce environmental statutes.

Even before the Supreme Court shifted to the right, the Clean Air Act was already a shaky foundation for greenhouse gas regulations. Enacted in its modern form under President Richard Nixon in 1970, the Clean Air Act has not been substantially updated since 1990. Back then, regional air pollution and acid rain were the top priorities, while global climate change risks were less fully realized. Thus, the act leaves substantial ambiguity regarding how EPA should regulate greenhouse gases. 

If a hostile Supreme Court constricts EPA’s authority to regulate greenhouse gases, the need for legislation would grow ever more urgent. That’s not necessarily a bad thing. 

Regulations enable an administration to act without new legislation from Congress, but they leave climate policy vulnerable. Regulations like the Clean Power Plan issued by President Barack Obama have languished in court or been rolled back by the Trump administration.

Pursuing net-zero emissions will require transforming the energy economy. Unlike air pollutants that can be scrubbed or averted while still burning fossil fuels, carbon dioxide can be controlled only by avoiding fossil fuels or capturing their exhaust. That will require reshaping how we generate electricity, power our vehicles, and operate our buildings and industry. 

Such momentous decisions rightfully belong in the hands of Congress and the president. As tough as legislation is to pass, it’s also tough to undo, requiring the vote of two houses of Congress and a president’s signature. If written carefully, climate legislation could endure examination by the courts and put the country on a sustainable path toward slashing emissions.

Congress has abdicated its responsibility to address climate change for far too long. The ambitious climate plan proposed by presidential candidate Joseph Biden Jr. — including 100 percent clean electricity by 2035 and net-zero emissions economy-wide by 2050 — will require major investments that cannot be shoehorned into the Clean Air Act.

No matter who fills Justice Ginsburg’s seat on the Supreme Court, climate policy should not be left a heartbeat away from being overturned. Only legislation can provide the foundation we need to tackle climate change more vigorously.

Daniel Cohan is an associate professor in the Department of Civil and Environmental Engineering at Rice University. The author’s views are his own.