(Washington) The Supreme Court of the United States examined on Monday an environmental file with enormous stakes, likely to complicate the fight of the government of Joe Biden against global warming. The judges, who will have to render their decision before June, appeared divided on the question.
The hearing focused on the ability of the (federal) Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from coal-fired power plants, which produce almost 20% of electricity in United States.
This mission is “exactly within the purview” of the agency, said progressive judge Sonia Sotomayor. But several conservative judges appeared skeptical.
Arguing for a coal mining company, lawyer Jacob Roth felt that the prerogatives of the EPA went too far. “The agency asks questions like: should we get out of the coal industry? Should we build more solar panels in the country? […] These are not questions for an agency to answer. »
In 2007, the Supreme Court had decided, by a narrow majority, that the EPA was competent to regulate the emissions of gases responsible for global warming, in the same way that it is charged by a law of the 1960s with limiting the pollution of the air.
But since then, former Republican President Donald Trump, a climatosceptic hostile to any binding measure for the industry, has brought three magistrates into the temple of American law, cementing his conservative majority (six judges out of nine).
The hearing took place, coincidentally, on the day of the publication of a new report by UN climate experts, making a clear statement on the catastrophic impacts of climate change.
Concretely, the file finds its source in an ambitious plan adopted in 2015 by Barack Obama to reduce CO emissions.2. This “Clean Power Plan”, whose implementation fell to the EPA, had been blocked before coming into force.
In 2019, Donald Trump published his own “Affordable Clean Energy Rule”, limiting the EPA’s scope of action within each site, without allowing it to remodel the entire network.
A federal court having invalidated this draft, several conservative states and the coal industry asked the Supreme Court to intervene and clarify the powers of the EPA.
According to Elizabeth Prelogar, who was defending the administration of Joe Biden on Monday, the judges should wait for the publication of new rules from the EPA, expected before the end of the year.
Joe Biden has indeed made it known that he does not intend to resurrect Barack Obama’s plan, and his administration had asked the High Court to declare the file obsolete.
Conservative states and industry are thus actually seeking to “restrict the authority of the EPA in future regulations,” said Elizabeth Prelogar.
On Monday, the conservative majority in the High Court “appeared interested in the possibility of sending a message […]by preventing government agencies from enacting regulations that have broad economic and political implications,” said Robert Percival, professor of environmental law at the University of Maryland.
In an argument sent ahead of the hearing, West Virginia, which is bringing the action, criticized the EPA for behaving like “the central energy planning authority”. This “robs states of their traditional authority, without a clear sign of congressional approval,” she wrote.
Before the hearing, Richard Lazarus, a professor of environmental law at Harvard University, said there were “good reasons” to believe that the Court would follow this reasoning, and say “that Congress has not no right to delegate regulatory power […] or only using very precise language”.
Given the paralysis of Congress, where a huge social and environmental spending project led by Joe Biden has just failed, “such a shutdown would threaten the government’s ability to respond to the most pressing problems, not just global warming” , he pointed out.
To avoid this scenario, several environmental defenders had written to the Court. “Without efforts to reduce greenhouse gases, temperatures could rise by up to 5.6 degrees,” climatologists reminded him. And minimizing the impact of climate change “requires coordination at the federal level”.
Left-wing elected officials, including Senator Bernie Sanders, have been more offensive. For them, the progress made in the 20and century in terms of longer lifespans were made possible by administrative agencies that “curbed the excesses of industry”. According to them, this file “is the product of resentment” of the industry.