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July 5, 2022, 1:05 p.m. EDT

Supreme Court limits EPA’s role in combating climate change in a fresh jab at the 50-year-old Clean Air Act

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By Rachel Koning Beals

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‘Broad authority’

For the most part, Democratic-led states and select power companies — including Consolidated Edison Inc. /zigman2/quotes/207137172/composite ED -2.17% , Exelon Corp. /zigman2/quotes/205982254/composite EXC -0.77%  and PG&E Corp. /zigman2/quotes/202583141/composite PCG +0.97%  — sided with the Biden administration, as did the Edison Electric Institute, an investor-owned utility trade group. Major oil and gas firms /zigman2/quotes/205871374/composite CVX -0.76% /zigman2/quotes/204455864/composite XOM -1.54% spoke up in favor of the EPA limitations.

At least one electric co-op, however, said an EPA with a lighter touch will be key to the energy transition.

“As our nation depends on electricity to power more of the economy, policymakers must recognize the need for time, technology development and the importance of always-available energy sources to maintain reliability and affordability,” the National Rural Electric Cooperative Association said in a statement.

“That’s particularly true in light of recent warnings that dozens of states may struggle with rolling blackouts this summer due to policies that promote the disorderly retirement of existing generation resources,” the group said,

Earlier this year, 192 Democratic lawmakers  signed on to an amicus brief  supporting the EPA. They argued that a particular section of the Clean Air Act (CAA) was “intended to confer broad authority on the EPA to regulate and respond to both new and existing air pollutants, as needed to carry out the stated purpose of the CAA,” according to their filing.

At a National Press Club event previewing the SCOTUS EPA case earlier this year, West Virginia Attorney General Patrick Morrisey challenged Edison Electric Institute’s position that the case could undermine the EPA beyond the scope of the coal power case.

“This once again is about who gets to make the decision. It’s Congress. There’s no secret agenda, if you will. … [W]e know that everyone has different economic incentives as to why they make their decisions,” said Morrisey.

“We’re talking about the wrestling match between the legislative branch of our federal government and the executive branch of our federal government, and how we have that balance of power between the two. People shouldn’t read into it, [that we’re] talking about the merits of climate change,” he said.

‘Other pollutants’

The Supreme Court’s decision does not mean the end of President Biden’s climate agenda, rather a review of strategy, said Kevin Minoli, former senior official in the EPA’s office of general counsel and now a partner with Alston & Bird .

“The Biden administration focused on rules that limit power-plant emissions of other pollutants. EPA’s expectation is that controls put in place for those other pollutants will also reduce a portion of a power plant’s carbon-dioxide emissions. If EPA is right, that could significantly blunt the impact of today’s decision,” he said.

The Clean Air Task Force, an environmental advocacy organization, said the EPA could still use its authority to set stringent standards based on pollution-control technologies, including carbon scrubbers and gas/hydrogen co-firing , as well as and heat rate improvements .

The impact of this week’s high-court decision will likely depend on whether lower courts extend SCOTUS’s reasoning to challenges to regulations being reviewed under sections of the Clean Air Act or under different environmental laws.

The Clean Air Act, now more than 50 years old, is considered by many to be one of the most successful pieces of U.S. law ever.  Several studies  have credited it not only with greatly reducing pollution and smog but paying dividends in health improvement and increased economic productivity.

Many power plants, and fossil-fuel companies in part, have been diversifying their energy portfolios to include more alternatives, such as wind and solar /zigman2/quotes/205740995/composite ICLN -0.05% . In fact, Chevron this year announced  it would buy Renewable Energy Group Inc.

Natural gas remains a debate, however. Many in the energy industry  push for its inclusion  in a cleaner-energy future in order to support U.S. energy independence /zigman2/quotes/203483736/composite USO -2.23%  and keep energy costs down.

The natural-gas sector has targeted a reduction in methane emissions and is championing the still-developing technology of capturing and storing emissions. Environmental groups say natural gas must be included on the list of emitting fossil fuels that the U.S. and others eventually eliminate.

The White House has set other federal efforts in motion, including making buildings more efficient and changing the fleet of government vehicles to all-electric. But other, incentive-based proposals that would help green the power sector and build out solar /zigman2/quotes/205740995/composite ICLN -0.05% and more in U.S. homes have been so far rejected in a  stalled Build Back Better spending plan .

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