Language Interpretation, Climate Change, And The Fate of Humanity

The US Supreme Court determined that the EPA’s alternate interpretation of ‘best system of emission reduction’ was beyond its legal authority granted by the Congress

Source: Pablo García Saldaña from Unsplash

The recent ruling of the US Supreme Court on West Virginia v. EPA case has been along political lines and disappointed many. People have expressed their frustration, including bloggers here on Medium (see here and here), climate activists such as Bill McKibben, and many writers on other media platforms such as the Washington Post, the New York Times. I highly recommend reading the article published in the New York Times as it captures the dilemma that many regulatory agencies face in the current political scenario.

Of course, this is not an exhaustive list, but enough to highlight a point I intend to make in this blog. My political ideology inclines heavily towards liberal/progressive agenda. I have been a climate change alarmist, who binge-reads most environmental related stuff here on Medium and elsewhere and feel that we must eliminate fossil fuels immediately to slow, if not avoid, worsening of on-going climate catastrophe. Nevertheless, I fully agree with the Supreme Court’s ruling and feel it was perfectly fair, logical, and sound.

Before processing, I just want to explicitly state that I am not at all expert in legal matter and don’t claim to be one. My opinion relates to only this particular ruling (given my background in engineering and sustainability) rather than a general political and ideological divide noticed within the US Supreme Court’s rulings on other issues.

How does EPA function and what did it do?

I am not going into much detail about how the EPA makes regulations and formulates standards. The 89-page ruling summarizes all relevant laws, clauses, and procedures in greater details; the first 15–20 pages and would be a great read for the interested readers. However, the following is a brief summary taken from the ruling itself. The EPA derives its legal authority from the Clean Air Act, which was passed in 1960s and have gone through multiple, progressive amendments. The Clean Air Act has three programs that allow the EPA to control air pollution from various sources such as power plants.

1. The first one is National Ambient Air Quality Standards (NAAQS) in which the EPA identifies pollutants that are harmful and sets maximum permissible safe limits, but it does not do anything else in terms of regulating them. The task of meeting the safe limits is up to the states who then submit their respective implementation plans to the EPA regarding how they intend to maintain the safe limits within their state boundaries. The EPA covers six ‘criteria’ pollutants under NAAQS; carbon dioxide is an air pollutant but is not covered under NAAQS.
2. The second one is Hazardous Air Pollutants (HAP) program in which EPA mainly regulates all pollutants not covered in NAAQS, particularly all pollutants considered toxic. In this program, the EPA has the authority to directly control the emissions from both existing and new sources.
3. The third one is New Source Performance Standards (NSPS) program under Section 111 (a-d). The Sections 111 (b) and 111(d) allow regulating emissions from the new and existing power plants, respectively. In this program, the EPA must determine Best System of Emission Reduction (BSER) plan to meet the emission limits set by the EPA itself. BSER is essentially commercially demonstrated best (technical design) practices that the EPA determines for others to follow. The EPA only sets an upper ceiling and the power plant generators can adopt different solutions as long as they perform better than the BSER design suggested by the EPA. The EPA has rarely used NSPS to determine BSER in the last 40 years, and never in regulating emissions from the power sector, as clause seemed redundant: most pollutants are already covered in the first two programs and all new plants are already covered by the regulations applicable to the existing plants under those two programs.
4. However, in October 2015, the EPA released new rules for regulating carbon dioxide from new (under Section 111(b)) and existing (under Section 111(d)) power plants. The rules were different for new and existing plants. For new coal and natural gas plants, the EPA suggested using highly efficient production processes and carbon capture technologies. As the provisions of the act, the EPA was required to regulate emissions from existing coal and natural gas plants as well, which it did via Clean Power Plan rule. In addition to suggesting the use of more efficient technology, the Clean Power Plan rule suggested adopting ‘generation shifting’ approach. In this approach, coal power plants can i) reduce their own generation ii) invest in gas/solar/wind (low-emission) plants to reduce their own emissions from coal iii) buy emission allowances as a part of cap-and-trade scheme. The EPA determined that the overall share of coal in electricity supply must decline from 38% in 2014 to 27% in 2030, a limit which was deemed so strict, even stricter than the limits on the new coal plants, that existing plants would have to shut down without adopting one or more of the three generation-shifting solutions mentioned above. These changes, as per the EPA calculations, would have required billions of dollars of new investment and job losses in tens of thousands. So, the Clean Power Plan rules went beyond simply suggesting the technical and operational improvements of coal plants and rather encouraged solutions that would essentially change in the entire generation-mix, and therefore, the electricity sector itself. Therefore, this BSER proposal became the main legal contention on which the entire ruling was based.

What is the ruling about?

It is important to understand the crux of the legal issue on which the Supreme Court issued its decision. The court said the EPA historically interpreted the ‘system’ as anything that includes technical/ administrative/operational changes at individual sources/plants (e.g., coal plants), so an entirely new interpretation required some scrutiny. The court said that the EPA suggested implementing a ‘cap and trade’ mechanism, which the Congress itself failed to pass many times, so was unlikely that the Congress meant the EPA to transform the entire electricity sector on its own without any proper approval. On these grounds, the court concluded that while it wasn’t qualified to decide what ‘system’ in BSER really meant, the EPA’s interpretation of ‘system’ in BSER as ‘generation-shifting mechanism’ was beyond its legal authority granted by the Congress under the Clean Air Act.

In simple terms, the court basically said that since EPA took an entirely different interpretation of ‘system’ for the first time in 40–50 years, which widened the scope of the consequences of its regulations from individual or a set of few plants to the entire industry. As judges, we are not qualified enough to explain or describe Congress meant by ‘system’, but we also couldn’t find its proper and relevant meaning elsewhere in past legal or congressional documents/speeches to concur with the EPA’s interpretation. Since such large-scale changes are often policy decisions taken by Congress, not administrative agencies, we think that the EPA must seek proper approval from Congress or Congress must explicitly clarify what it wants EPA to do, an approach often referred to the major question doctrine.

My take

Claiming that the court has taken or stripped the power of the EPA is disingenuous. The court only asked whether such power existed in the first place, which is entirely justifiable and which is what the courts are supposed to do. My main insight from the ruling is that people are expecting way too much from federal agencies, which are then ‘innovatively’ interpreting decades-old laws to solve a problem it was never envisioned to solve. The EPA’s main purpose at the time of its creation was protecting local environmental problems not solve global climate change. We cannot expect the jargons and terminologies used by lawmakers from 1960s/70s to be applicable today without any confusion. And when some people or entities don’t like that confused interpretation, they sue. In fact, many experts quoted in an article on the New York Times also highlighted the tussle between the court and the Congress on issues and interpretations beyond environmental domain.

An opinion on VanityFair gets the underpinning of the judgement right, but still blame the conservative judges for such biased ruling. In my opinion, the role of courts is to assess whether some personal injuries/losses have occurred, to test whether laws are constitutional, or to interpret the meaning of the law. For example, in 2007 case Massachusetts v. EPA, the Supreme Court allowed the EPA to declare CO2 as a pollutant and accepted its authority to regulate under the Clear Air Act. So, it is unfair to blame any the lack of any meaningful climate progress on the Supreme Court. In fact, the chief Justice Roberts lamented that everyone is coming to the Court as they are disappointed with Congress and Executive Branch, but such issues are “nonjusticiable” and it is “the function of Congress and the Chief Executive, not the federal courts” to redress such issues. Interestingly, in the entire the case, there has never been any instance when the court denied global warming. They stated that the EPA must act or not act as per the best scientific information available to make an informed choice and the court had no purpose to interfere.

Final thoughts

Whatever opinion one may have about the decision and its consequences, I found it simply amusing that the entire ruling revolves around the interpretation of phrase ‘Best System of Emission Reduction’ (BSER) or even a single word ‘system’ within it. While I agree with the court, it is fascinating and terrifying to see how a different interpretation of a word can have global consequences.

Second, without explicit definition, any vague wordings will require interpretation, which is often subject to political ideologies, and are therefore, unstable. We simply wasted past 7–8 years fighting over what ‘system’ means in ‘Best System of Emission Reduction’. I feel that blaming courts won’t result in climate progress as long as the current US Congress (left or right) continue to lack courage to pass a mere 2–3 sentences-long-amendment to the existing act and explicitly grant EPA the authority to transition towards best climate-neutral energy system . The Congress has overridden the Supreme Court interpretation many times in the past and can do it again.