EPA decision “does not eliminate all levers” to fight climate change

This morning, the U.S. Supreme Court issued a 6-3 ruling in West Virginia v. Environmental Protection Agency that curtailed the executive branch of the federal government’s ability to broadly regulate the emissions of fossil fuel-burning power plants that contribute to climate change, dealing a blow to the Biden administration’s climate goals.

Below, Northwestern University faculty from the Weinberg College of Arts and Sciences, the Northwestern Pritzker Law School and the Kellogg School of Management offer reactions and insights on the likely ramifications of the decision.

Daniel Horton is an assistant professor in the department of Earth and Planetary Sciences at Weinberg. He is an expert on climate change modeling and the leader of the Climate Change Research Group. He can be reached by contacting Max Witynski at [email protected]

Quote from Professor Horton

“The Supreme Court’s West Virginia v. EPA decision is unfortunate in that it eliminates one of the levers we thought we had to reduce greenhouse gas emissions and limit the effects of human caused climate change. However, the decision does not eliminate all available levers, which suggests that the EPA will still have a role to play in fighting climate change. In addition, this decision puts greater pressure on industries and institutions – including my own institution, Northwestern – to make the sound scientific, economic and moral decision to eliminate their greenhouse gas emissions and stop supporting organizations that actively inhibit climate change mitigation efforts.”

David Dana is the Kirkland & Ellis Professor of Law at the Pritzker Law School and the director of the Program on Sustainability and Food and Animal Law. He is an expert on climate change and environmental law. He can be reached by contacting Max Witynski at [email protected]

Quote from Professor Dana

“Besides invalidating EPA’s reading of its statutory authority under the Clean Air Act to transition the electric power sector to lower or zero carbon energy sources, Justice Roberts’s majority opinion provides almost no guidance to the EPA as to what it lawfully may do to address climate change. What the majority opinion does do is ratify and expand the ‘major questions’ doctrine – a doctrine that allows a court to strike down any agency regulation that in the court’s view involves a ‘major question,’ unless Congress very specifically dictated the substance of the regulation in the text of a statute (which will virtually never be the case). The Roberts opinion, although somewhat moderate in tone, thus represents a triumph for conservatives who want the courts to reign in costly regulation of business, with regard to climate change and in other contexts.”

Michael Barsa is the a professor of the practice at Northwestern Pritzker School of Law. He is also the co-director of the Environmental Law Concentration. He can be reached by contacting Max Witynski at [email protected]

Quote from Professor Barsa

“EPA dodged a bullet. The Supreme Court made it harder for EPA to fight climate change, but it didn’t make it impossible. EPA can’t use Section 111 of the Clean Air Act to shift power generation away from coal and toward solar and wind, but it can still use that provision to regulate coal plants themselves. The Court signaled its discomfort with allowing agencies to broadly regulate under broadly worded statutes, but it didn’t entirely gut the ability of agencies to do their jobs.”

Aaron Yoon is an assistant professor of accounting information and management at the Kellogg School of Business. He is an expert on firms’ Environment Social Governance (ESG) efforts and how they impact investing. He can be reached by contacting Haley Robinson at [email protected]

Quote from Professor Yoon

“Higher emissions can be perceived as a proxy for higher economic growth. Economic growth is important for society, and we need measures and guidance for firms to offset the emissions and shift to clean energy in a sustainable way. Given that the economy is likely to face a downturn, we need to think about the costs of radically curbing emissions. My interpretation of today’s Supreme Court ruling is similar in spirit: We know that climate change is an important issue. However, we have to be mindful of the current business model that firms operate in and also that it may be difficult for firms to make fast changes. Overall, there is a need to facilitate a sustainable pathway for firms to contribute to emission reduction.”

Jacob Teeny is an assistant professor of marketing in the Kellogg School of Management. He specializes in the study of consumer behavior. He can be reached by contacting Haley Robinson at [email protected]

Quote from Professor Teeny

“When it comes to any corporate ethical decision, there are always two components: (a) what the corporation internally feels is the ethical thing to do, and (b) how consumers will ethically view the ultimate decisions the business makes. For executives who don’t view environmentalism as a moral matter, there really is no ethical question at play. For consumers, though – particularly those who view environmentalism as a moral issue – this ruling might actually help companies seem moral simply by maintaining the status quo. That is, if this latest ruling peels back restrictions, now companies don’t technically have to follow those previously set rules. In which case, if they simply maintain the status quo (i.e., continue what they were doing before these restrictions were removed) it could be seen as acting ethically – especially if other companies do ultimately engage in more polluting behaviors for the sake of profit.”

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