Tag: Clean Air Act

Supreme Court Decision: Let the Country Burn

Photo courtesy of PublicDomainPictures.net.

Editor’s Note: The following is the opinion of Jim Olson, FLOW’s founder and senior legal advisor.

Jim Olson, FLOW’s Founder and Senior Legal Advisor

Temperatures soar to record highs, fires rage across the West, drought and deluge plague cities and countryside, and unprecedented water scarcity endangers hydration, food, health, and life itself. 

No one credibly disputes the alarming increase in global temperatures and the untold suffering and cataclysmic havoc attributable to greenhouse gas pollutants. One of the primary pollutants causing this unfolding collapse of humanity and the Earth’s climate is carbon dioxide or CO2. The United Nations Intergovernmental Panel on Climate Change (IPCC) released a report in February 2022, urgently warning government leaders and people across the globe that we have 10 to 15 years to drastically reduce greenhouse gases like carbon dioxide or CO2.

Unfortunately, our newly constituted Supreme Court acted more like “supreme rulers” than an independent judiciary, choosing politics and their fixation on narrow legal ideology over the urgent need to reduce greenhouse gasses under a realistic and fair reading of federal law—the Clean Air Act (CAA). The CAA delegated authority to the U.S. Environmental Protection Agency to evaluate and require the “best systems” available to reduce greenhouse gasses at U.S. coal and natural gas power plants. As a result, until Congress corrects the problem, carbon dioxide- and methane-polluting power plants in the United States will continue to release those greenhouse gasses into the atmosphere from burning coal and natural gas.

Until citizens elect a responsible Congress, it is up to the states, local governments, and us in every way possible to immediately reduce greenhouse gases and protect ourselves, our children, and grandchildren.

Anyone who has been exposed to the machinations of Congress in the last 20 years knows very well that Congress isn’t going to correct the problem any time soon. This means, it is up to the states, local or regional governments, and citizens—you and me, to lead the way on the epic energy transition needed to address climate change. Our children and grandchildren, and theirs, depend on it. 

How Did We Get Here?

In 1970, Congress passed the Clean Air Act (CAA) to authorize the U.S. Environmental Protection Agency (EPA) to reduce the emission of pollutants from sources of air pollution, including coal-fired power plants. Carbon Dioxide is a pollutant. Under the CAA, EPA can adopt the “best system of emission reduction” (BSER) to require power plants to reduce CO2

During the Obama presidency in 2015, because technological fixes to reduce CO2 at power plants were ineffective to achieve needed reductions in CO2, EPA adopted a combination of three “best systems” or BSERs to require utilities to reduce CO2 at coal power plants: (1) technological fixes; (2) shift to natural gas from coal; and (3) inclusion of solar and wind generation. Each of these approaches are “best systems” to achieve the necessary reduction of emissions, and as required by the CAA, the Environmental Protection Agency adequately demonstrated these systems would work and are viable. The coal and utility industries and several coal-dependent states opposed EPA’s BSERs and appealed to the courts.

Looking more like “supreme rulers” than a Supreme Court, the conservative majority violated their own ideology that abhors judicial activism. Who is actually legislating here?

In 2019, sticking to Trump’s political agenda, the EPA repealed the three BSERs. Despite the Clean Air Act’s broad grant of authority to EPA to adopt “best systems” to reduce CO2, Trump’s EPA claimed that the use of the word “system” by Congress meant only on-site power plant technological fixes, concluding that the CAA did not authorize EPA to require utilities to reduce CO2 emissions by shifting some of their energy production to natural gas, solar, or wind. In 2021, when President Biden took office, EPA announced plans to revoke the Trump repeal of the Obama EPA three-pronged CO2-reduction plans. Before Biden’s EPA plan took effect, however, the U.S. Supreme Court blocked it and granted the appeal by the utility industry and several states.

On June 30, 2022, in West Virginia v. Environmental Protection Agency, one of the most important climate change cases in a decade, the U.S. Supreme Court’s new 6 to 3 conservative majority established under former President Trump ruled that the CAA term “best system of emission reduction” means only technological improvements at existing coal plants. In effect, the Court ruled that the key words “best systems” did not give EPA the authority to require the utilities that own or operate plants to add more natural gas, solar, and wind energy systems to their energy portfolios to reduce greenhouse gasses. As a result of its decision, the Court shackled EPA’s authority to combat climate change by reducing CO2 from power plants.

The failure of the Supreme Court to accept the broad grant of power by Congress to the EPA with the words “best system” in the face of the reality of CO2 emissions, global warming, and cataclysmic climate change effects has no legal or moral justification. As the famous Supreme Court Justice Oliver Wendell Holmes Jr. once observed to the effect, “The life of the law is not logic, but experience.” – In fact, the current Court’s conservative majority failed to draw upon either one.

No one credibly disputes the alarming increase in global temperatures and the suffering and cataclysmic havoc caused by climate change are attributable to greenhouse gases. As a result of the decision, the EPA’s authority to combat climate change by reducing CO2 from power plants has been shackled. 

The W. VA v. U.S. EPA decision can be explained only in terms of politics and ideology. Politically, the Court followed Trump’s and his corporate cronies’ continuing denial of climate change. Ideologically, the Court followed the litany of a minority of ultra-conservative academics, lawyers, and judges who believe the size and authority of government should be diminished wherever possible, no matter the chaos or burden heaped on people and the Earth. True to its ideology, the majority of the Court decided that EPA, within the executive branch of government, invaded the powers of Congress by exercising “legislative power” when it interpreted the words “best systems” to include requiring utilities to shift to natural gas, wind, and solar energy systems.

Looking more like “supreme rulers,” the conservative majority violated their own ideology that abhors judicial activism by engrafting the words “technological improvements at existing power plants” to the phrase “best system.” The Court itself interfered with the legislative power of Congress by judicially amending the CAA to achieve its end: keep fossil fuel power plants running by shackling the authority of EPA to reduce pollutants like CO2. If we have a constitution that forbids one branch of government from interfering with the powers delegated to another branch, our Supreme Court’s decision in West Virginia v EPA was unconstitutional. The decision will not withstand the test of time and urgency of climate change. The Court placed itself above the law and Constitution, deciding, in effect, to let our country, its people, and communities burn and suffer the grave impacts to their lives, health, community, environment, and world. Until citizens elect a responsible Congress, it is up to the states, local governments, and us in every way possible to immediately reduce greenhouse gasses and protect ourselves, our children, and grandchildren.

FLOW Press Statement—Today’s U.S. Supreme Court decision in West Virginia v. EPA

Traverse City, Mich.— The following is a press statement from Jim Olson, Senior Legal Advisor at FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, in response to the United States Supreme Court’s 6-3 decision today in West Virginia v. EPA, which cripples the U.S. Environmental Protection Agency’s ability to limit greenhouse gas emissions under the federal Clean Air Act from existing coal plants to combat climate change.

“It appears the Supreme Court has chosen a political agenda over the law and legal precedent established since the 1970 passage of the Clean Air Act, which authorizes the EPA to set standards on emissions from air pollutants. The Supreme Court previously ruled that the EPA has authority to set standards on emissions because greenhouse gasses are pollutants. Today, the Supreme Court departs from this precedent by weakening EPA’s authority to limit emissions from coal-fired power plants.

“The effect of the Supreme Court’s decision cannot be overstated: At a time when coal plants are being shut down as states, the nation, and world shift to renewable, clean energy, the Court has sponsored the continued burning of coal that will accelerate the climate crisis.

“It is now even more important that states like Michigan step up to defend and strengthen their environmental safeguards. Fortunately, under the Clean Air Act, states can continue to limit and force the shutdown of existing coal plants under state laws and regulations. Just last week the Michigan Public Service Commission, after nearly a decade of contested energy and legal issues, approved a settlement and order that will require Consumers Energy to shut down its remaining coal-fired power plants within 3 years.”

An Earth Day Review: The Michigan Environmental Protection Act in 2022

By Skip Pruss  

In 1970, over 20 million people participated in the nation’s first Earth Day. Pioneered by Wisconsin U.S. Senator Gaylord Nelson, Earth Day was one of the first of what became to be known as environmental teach-ins. Senator Nelson sought to confront the growing list of environmental issues facing the nation and the world by galvanizing public interest and elevating the level of discourse on threats to our air, land, water, lakes, rivers, and oceans. 

The 1970s witnessed the enactment of an array of state and federal legislation aimed at dealing with a growing list of environmental impairments. The new regulatory architecture imposed limitations on emissions to air and discharges to water, controlled the management and disposal of wastes, and reduced the release of hazardous substances into the environment.

Among the most notable of these new laws, was the Michigan Environmental Protection Act—known to us Michiganders as “MEPA.” MEPA took a dramatically different approach to environmental protection.  

While federal statutes like the Clean Water Act and the Clean Air Act took aim by ratcheting down allowable levels of hazardous materials discharged into the environment, MEPA empowered “any person” to bring an action in court “for the protection of the air, water, and other natural resources and the public trust in these resources.”

Under MEPA, citizens have the power to use the courts to protect local natural features “from pollution, impairment, or destruction.” If a citizen is able to show that an activity will pollute, impair, or destroy a natural resource, then the proponent of the activity must either rebut the evidence or demonstrate that there is “no feasible and prudent alternative.”

The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now.

MEPA also requires a determination whether a proposed project “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”

In essence, MEPA requires that a proposed activity that may impair the environment be analyzed to determine not only whether there is a more environmentally benign way to accomplish the proposed activity, but also whether the effects of the activity are consistent with the “paramount” value of protecting public health and the environment.

Applying MEPA to Our Greatest Environmental Challenges

One of the leading champions and practitioners of MEPA has been FLOW’s founder, Jim Olson. For 50 years, he has put MEPA to work in the courts and administrative processes, defending wetlands, streams, flora and fauna, and human health.  Jim has adeptly used MEPA to protect the Great Lakes and its tributary rivers and streams, vindicate indigenous treaty fishing rights, and limit Nestlé’s withdrawal of Michigan groundwater.

For the first time, at the urging of FLOW, a state agency has acknowledged that MEPA applies to activities that result in large-scale greenhouse gas emissions. In reviewing Enbridge Energy’s request to the Michigan Public Service Commission (MPSC) for authority to construct a tunnel to house a replacement for the Line 5 pipelines that currently cross the Straits of Mackinac, the MPSC ruled that not only is an analysis under MEPA required, the analysis must include a review of the greenhouse gas “pollution” attributable to the hydrocarbons transported within the pipelines.

Tar sand oil production, Fort McMurray, CA Photo by Environmental Defence Canada.

The MPSC agreed with FLOW’s arguments that MEPA is supplementary to other existing regulatory and administrative procedures, and that MEPA requires consideration of the likely environmental effects of the proposed tunnel project, including the cumulative effects of greenhouse gasses on climate change.

FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.

FLOW has consistently argued that all major permitting decisions undertaken by state and local governmental authorities that involve activities that may impair natural resources also must undergo a separate review under MEPA. Without such a thorough analytical review, permitting decisions are incomplete and invalid.

Inherent in MEPA is the affirmation that our air, water, and natural features are irreplaceable and that maintaining the functionality, vitality, and resilience of natural systems is essential to our well-being and that of future generations. The rapidly evolving science of ecological economics affirms that natural systems provide trillions of dollars of economic value that are lost to future generations when natural resources are impaired or destroyed.

The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now. FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.