by Adam Carlesco
In July 2022, the Supreme Court landed a heavy blow against climate action in its decision on West Virginia v. EPA, which significantly restricted the Environmental Protection Agency’s authority to regulate greenhouse gas pollution under the Clean Air Act.
The Court’s majority invoked a relatively novel legal theory, declaring that EPA ran afoul of the so-called “major questions doctrine.” Under this new doctrine, the majority held that agencies can’t adopt regulations with “major” implications for the national economy unless Congress has explicitly granted the agency that authority.
Under the Clean Air Act, the EPA has the power to pursue a “best system of emissions reduction.” But the Court held that this doesn’t include a broad system of shifting power generation to non-polluting sources (in other words, renewables). Under the ruling, EPA can only require pollution-reducing technology on individual fossil fuel power plants.
This decision, written by the conservative wing of the Court, will significantly limit how EPA approaches the ever-deepening climate crisis. This could hamstring the agency (and other agencies) in future regulatory endeavors.
West Virginia v. EPA will curb federal climate action. But states with strong climate laws — such as New York, California and Maryland — have become national vanguards confronting this environmental crisis.
New York’s Climate Legislation Lights A Path Forward
The Supreme Court’s radical conservatives now stand in the way of strong national emissions regulation. But opportunities and successes have risen at the state level. Climate leaders like New York have passed legislation mandating significant emissions reductions in the coming years.
For instance, the New York Climate Leadership and Community Protection Act (CLCPA) requires the state to reduce economy-wide emissions by 85% below 1990 levels by 2050. It also requires the state to produce 100% zero-emissions electricity by 2040. Both measures have 2030 goals to make sure the emissions reductions happen fast.
These reductions aren’t mere suggestions, as industry alleges. They are binding legislative requirements that all branches of state government must uphold and enforce. (Food & Water Watch has sued the Federal Energy Regulatory Commission for failing to consider this law when reviewing gas infrastructure expansions in the state.)
New York is still drafting its climate action plan. But state courts have already confirmed that the CLCPA’s emissions reduction requirements are binding law.
Recently, a New York court upheld the Department of Environmental Conservation’s denial of air permits for the Danskammer fracked gas power plant. The court held that if approved, the plant’s emissions would “constitute a substantial and direct source of new GHG emissions in the state.” An approval would thus be “inconsistent with or would interfere with the attainment of the Statewide GHG emission limit for 2030.”
The state court ruled that, even if the climate action plan is still a work in progress, the CLCPA itself required emissions reductions. The law still empowered state agencies to deny permits for projects that would interfere with the law’s emissions reduction mandates.
The CLCPA shows how states can move forward on climate action when federal regulators and legislators have failed.
States Can Move Fast On Climate Change
Several states have risen to the occasion to fight climate change with legislation. With such legislation, they can start decarbonizing their energy systems — and their entire economies.
For example, New York City has banned hookups for fracked gas in new construction. The ban will drastically reduce reliance on fossil fuels while improving local air quality. Washington, D.C. passed a similar policy in efforts to reach carbon neutrality.
In New York, a statewide ban on new gas hookups is now moving through the state legislature with support from Governor Hochul. We’re working to ensure it will pass soon. Meanwhile, Maryland’s first draft of its Climate Solutions Now Act included similar measures. We’re also working to win that bill’s passage in the next legislative session.
This is just the beginning of the state-led energy transition spreading across the country. With the federal government limited by an ideologically regressive Supreme Court, states are working on the frontline for climate action.
We will be demanding even more progress from states over the coming years. We’ll be holding elected officials accountable to their constituents. That means calling on them to lead the charge in combating climate change and transitioning to a clean energy future.
You Can Help Us Push For Progress
Federal elected officials and regulatory agencies often have close ties to powerful corporations. But elected officials and agencies at the state and local levels are more likely to listen to community action and organizing.
Now is the time to call on your state and local elected officials to fight for bold, uncompromising climate action in your community. We can tell our local lawmakers to pass climate legislation today.
Start with New York: Tell Your Rep To Ban Fracked Gas In New Construction Now!