Climate Policy: when environmental action is deemed illegal

As the COP 26 UN Climate Summit kicks off in Glasgow, Scotland, environmental legislation in the United States is facing new threats. On Friday, the Supreme Court agreed to review the Environmental Protection Agency’s (EPA) power to limit greenhouse gas emissions from power plants, in response to lobbying from coal-mining companies and Republican-led states.

The Clean Power Plan, first proposed by the EPA in June 2014 under the Obama administration, aimed to fight human-caused climate change by assigning to each state an individual goal for reducing carbon emissions. While each state could accomplish this goal however they wanted, the EPA could intervene if a state refused to submit a plan. With each state working towards a common goal, the project was expected to reduce American carbon emissions from electricity production by 32% by 2030, compared to 2005 levels. But in 2016 the Supreme Court intervened, and the proposal was put on hold.

The current Biden administration has a new plan to cut American emissions in half by 2030, achieve a carbon-free electric grid by 2035, and have a net-zero emissions economy by no later than 2050. While these targets up the stakes of the original Clean Power Plan to meet the recommendations of experts, those with a personal (often financial) interest in keeping the fossil fuel industry alive aren’t happy about it. Now it will be up to the conservative-majority Court to decide if the EPA and other government agencies legally have the power to impose such rules, effectively forcing the transformation of the American electrical grid and the industries it currently relies upon.

Based on a technicality

The current appeal might pass based on a loophole. Pre-existing legislation, the Clean Air Act from 1970, authorizes the EPA to establish National Ambient Air Quality Standards (NAAQS) to protect the health of humans and the environment. New emissions reduction targets are to be enforced using this law through “the best system of emission reduction”, which is transitioning from fossil fuels to low-carbon energy sources. But opponents argue that while the EPA can provide standards and suggestions, it doesn’t have the authority to enforce them, “forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases.” Unclear wording in the Clean Air Act could be enough for the justices to rule, sometime next spring, that new regulations are indeed based on a “tortured series of misreadings” of the law, as stated in the appeal.

While some have called this possibility “ominous” or the “equivalent of an earthquake to anyone who cares about the environment”, the leader of the EPA, Michael Regan, seemed confident in his response to the news. Citing that the Court has upheld the EPA’s authority to regulate emissions from the energy sector in the past, he tweeted that the agency “will continue to advance new standards” to protect public health and the economy.

The game is over if key players refuse to pick up the ball.

Remodeling the grid

The electrical grid in many countries, including the United States, heavily relies on high carbon-emitting sources, otherwise known as fossil fuels. When fossil fuels are burned, carbon dioxide (CO2) is released into the atmosphere, which is clearly linked to the rise in global average temperature. In 2019, 1.72 billion tonnes of CO2 were emitted from energy production in the United States, 89% of which was from coal, natural gas, and petroleum. Shifting from these sources to low carbon-emitting options, such as renewables, will drastically curb emissions.

This can be done, provided the right policy and legislation are in place. Uruguay, Iceland, Costa Rica, and Scotland are four countries that already source over 90% of their electricity from low-carbon sources. Other larger, more populous countries are on their way to reaching similar goals, thanks to clear decision-making, a supportive regulatory environment, and good relationships between the public and private sectors. In Germany, dependence on power supplied from coal has dropped from 46% to 24% in just over a decade. In Canada, electricity generated from fossil fuels now only accounts for 19% of total production. But collectively, all countries need to be making efforts to resolve this common issue. Progress can easily be negated if a country such as the United States, which produces more electricity than any other country, elects to stick to the status quo.

Positive action taken on an individual level can easily amount to nothing when inadequate climate policy is in place.

Not exclusively an American problem

With poor public policy and weak legislation, any country could find itself in the same situation as the United States, with unexpected legal setbacks threatening its capacity to combat climate change. Still, the real heart of the crisis is the politicization of climate change in a polarized world. Unsurprisingly, the battle has grown and intensified over the years. Surprisingly, the teams have switched sides. In 1970, the EPA was founded by Richard Nixon’s Republican government, in a not-so-long-ago time when the environment was seen as a right-wing issue. As the years passed and what could be defined as either conventional or progressive changed, each party simply stuck to their core value: opposing the other.

While American politicians and activists need to dismantle how they view environmental legislation, other countries need to be careful not to fall into the same traps. Although Canada, for example, is making progress in reforming its electricity grid, expert-recommended actions to tackle climate change are still seen as controversial to many. The 2018 Greenhouse Gas Pollution Pricing Act, legislation that imposes a fee for industrial carbon emissions, was brought to the Supreme Court of Canada in 2020 over claims that it was “unconstitutional”. Conservative-led provinces argued that having this type of regulation at the federal level is illegal, and against their rights to control their individual economies as they see fit. The case was eventually settled – the Court ruled in April 2021 that Parliament has the authority to institute such a fee – but that’s not to say that similar issues won’t arise in the future. As long as powerful people are able to influence policy to fit their own personal agenda, the environment is seen as a partisan issue, or science-backed regulations can be deemed illegal, necessary reform will be delayed.


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