The Supreme Court allowed the Environmental Protection Agency to move forward with its rule restricting climate pollution from power plants on Wednesday, meaning that one of the Biden administration’s key climate policies can stay in place. For now.
The high court’s decision will allow the EPA to defend the rule in a lower court over the next 10 months. A group of power utilities, trade groups, and Republican-governed states are suing to block the greenhouse gas rule, arguing that it oversteps the EPA’s authority under the Clean Air Act.
The EPA’s new rules, which were finalized in April, would be the government’s first successful effort to regulate climate pollution from the power sector. The electricity industry is the second most-polluting sector in the American economy.
The Obama administration previously tried to regulate greenhouse gas pollution from the power sector. The Supreme Court blocked those rules from taking effect in 2016, before striking them down completely in 2022.
This time, the agency has written the rules within a framework laid out by the Supreme Court’s conservative majority in that ruling. In that now landmark case, the court ruled that the EPA could restrict greenhouse gas pollution from power plants only by requiring new technology, such as carbon capture equipment, to be installed at the plant itself. The agency couldn’t require utilities to stop burning fossil fuels and build more renewables.
In the near term, whether the Biden administration’s new attempt at regulating climate pollution will survive depends on the outcome of next month’s election. The Trump campaign has said that it will overturn the EPA’s new climate rules. During his first term, Donald Trump rolled back more than 100 environmental and climate protections.
Should Harris win, the rule will still have to survive the lower court challenge. That case is scheduled to be heard in front of the D.C. Circuit Court of Appeals this term.
“The high court made the right call,” Meredith Hankins, a senior attorney at the Natural Resources Defense Council, said in a statement. “Given its rulings in recent years undercutting environmental protections, the refusal of the majority on the Supreme Court to block this vital rule is a victory for common sense.”
Not all the news from the Supreme Court on Wednesday was good for climate advocates, though.
In the same decision that let the new rules stand, the high court’s conservative justices signaled that they might block the rules next year.
“In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges” to the rule, Justice Brett Kavanaugh wrote in a short statement attached to the stay, which was cosigned by Justice Neil Gorsuch.
But because the rules don’t require utilities to start complying until next June, there was no reason to grant an emergency stay, the two justices added.
Justice Clarence Thomas would have gone further and stepped in to block the rules immediately. Justice Samuel Alito, another reliable conservative vote, did not participate in the deliberations.
That suggests that four justices could be ready to block the rules as soon as next year. They would need only one more vote — from Chief Justice John Roberts or Justice Amy Coney Barrett — to stay the protections from taking effect.
The statement didn’t provide any hints to what Roberts or Barrett are thinking.
