The Supreme Court Spanked the Obama Administration on Emissions Without Really Changing Anything

A Closer Look at the New Energy Economy
June 23 2014 7:14 PM

“Almost Everything It Wanted”

A slight setback at the Supreme Court doesn’t change the fact that we’re winning the war on carbon pollution.

Smog.
We’re seen a heartening effort by polluting industries to get ahead of regulations rather than fight or undermine them.

Photo by David McNew/Getty Images

The political war surrounding the government’s efforts to limit emissions is ending not with a bang but a whimper.

“It bears mention that EPA is getting almost everything it wanted in this case," Justice Antonin Scalia said on Monday while announcing the 5–4 verdict in Utility Air Regulatory Group v. EPA.

Technically, though, the ruling was a slight loss for the EPA. The majority found that the agency’s efforts to force any fixed operation that emits pollutants to get permission before it expands was an overreach of the agency’s authority. But the ruling also upheld the ability of the EPA to force power plants and other operations that emit pollutants to adhere to its new standards. The way Scalia saw it, the decision lets the EPA regulate 83 percent of greenhouse gas emissions, instead of the 86 percent it could regulate under the authority it abrogated unto itself. “To permit the extra 3 percent, however, we would have to recognize a power in EPA and other government agencies to revise clear statutory terms,” Scalia said, adding that would contradict “the principle that Congress, not the president, makes the law.”

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In short, Scalia and the four conservatives spanked the Obama administration without really changing anything. “The Supreme Court's decision is a win for our efforts to reduce carbon pollution because it allows EPA, states, and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources,” EPA spokeswoman Liz Purchia said in a statement.

Coming just two months after the court ruled that the EPA could regulate pollution from coal plants that waft across state lines, this decision is sure to disappoint conservatives, climate-change deniers, and coal-country politicians. And it’s another sign of how the center of the debate is shifting to the left.

With a few exceptions—Ohio Gov. John Kasich just signed a bill to freeze the implementation of the state’s renewable energy requirements—the political climate surrounding emissions controls is becoming much less toxic. And that’s not just because Justice Scalia is giving President Obama’s EPA almost all of what it wants.

Over the weekend, former Bush Treasury Secretary Henry Paulson took to the New York Times op-ed page to issue an urgent call for a carbon tax. Meanwhile, renewable energies are becoming very popular in red states. A utility in Utah, which relies heavily on coal, just signed a single deal to bring 320 megawatts of solar capacity online in the next couple of years, equal to about 4 percent of the total. Arizona has become a huge player in solar. In Texas, the capital of America’s wind industry, wind supplies about 29 percent of the state’s electricity. Clean Line Energy is developing a series of electricity transmission projects in the plains and the interior that would enable the construction of massive amounts of new wind capacity.

Meanwhile, we’re seen a heartening effort by polluting industries to get ahead of regulations rather than fight or undermine them. Since the promulgation of new gasoline mileage standards, as I noted earlier this month, the U.S. auto industry has made stunning progress. The typical new car sold in May got 25.6 miles per gallon, up an impressive 27.4 percent from the rating of the typical new car sold in October 2007. Less gasoline used equals fewer emissions.

America’s power industry is likewise taking steps to reduce emissions—partly in response to higher standards, partly due to tax credits and other financial incentives attached to renewables, and partly because of the availability of cheap, cleaner-burning natural gas.

The fastest way to reduce emissions sharply would be to stop using coal in generating electricity. The EPA can’t ban the use of coal, and the Supreme Court wouldn’t sign off any such effort. But the market, structured as it is now, is slowly driving coal out of America’s energy mix. Utilities are slowly phasing out, shutting down, and retiring their older coal plants. In 2012, the EPA reports, 10.2 gigawatts of coal-fired capacity—only about 3.2 percent of the total—was retired. But thanks to the introduction of new Mercury and Air Toxics Standards, the process is accelerating. Since November 2013, 10 separate announcements of coal-plant retirements with a combined capacity of 5.36 gigawatts have been announced. The EPA projects a total of 60 gigawatts of coal capacity will be retired by 2020.

And those retired coal plants are being replaced by plants that produce fewer emissions, or no emissions at all—just check out the latest monthly report from the Federal Energy Regulatory Commission on energy infrastructure, which can be seen here. In the first five months of 2014, some 3.136 gigawatts were added to the nation’s generating capacity, or about 0.3 percent of the nation’s total. Not one of them is powered by coal. The new supply is dominated by natural gas (45 percent), solar (29 percent), and wind (21 percent). There is indeed a war on coal going on in this country—and coal is losing.

Daniel Gross is a longtime Slate contributor. His most recent book is Better, Stronger, Faster. Follow him on Twitter.

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