A Lump of Coal for a Sick Planet

A Lump of Coal for a Sick Planet

In 2011, the US Supreme Court noted coastal inundation, extreme weather, and “disruptions of food production” caused by climate change, and protected the EPA’s exclusive authority to regulate emissions, barring private claims against power plants. [1]  Since then, first-hand observations of severe weather, droughts, fires and floods have enlightened all but the hardest core climate deniers in the US, with 70% of the public now viewing climate change as either a crisis or a major problem.[2]   

Our planet is now warmer than it has ever been, at any time, in the entire history of modern civilization.[3]  The six warmest years on record have all been within in the last ten years.  Cooperating world scientists agree-unequivocally- that the emission of green-houses gases, particularly carbon dioxide, is the cause.  Americans are urging the government do something about it, with overwhelming public support- 78%- now backing government efforts to reduce carbon emissions from power plants.[4] 

Despite the Court’s prior support for EPA, scientists’ consensus, and a seismic shift in public opinion, the Supreme Court’s new GOP bloc has struck down EPA regulations to help transition the US to clean energy, delivering a major victory to fossil fuel interests that put them on the bench. 

For decades, the right has resisted the nation’s transition to clean energy, in quid pro quo for consistent campaign funding from the fossil fuel industry: oil, gas, and coal.  According to Open Secrets,[i] the oil industry regularly “pumps the vast majority of its campaign contributions into Republican coffers… Since the 1990 election cycle, more than two-thirds of this sector’s contributions to candidates and party committees has gone to Republicans.”  In addition to oil and gas, coal-based utilities and the mining industry also heavily support republicans, who have paid them back by blocking the nation’s quick transition to renewable energy. 

The fossil fuel industry has one of the world’s deepest and most formidable pockets.  Its well funded, industry-wide campaign to spread disinformation about the role of fossil fuels in causing global warming is well-documented; it has been even more pernicious and effective than the tobacco industry’s misinformation campaign during the 60s.[5]  At the opening of a hearing on ‘Fueling the Climate Crisis: Exposing Big Oil’s Disinformation Campaign to Prevent Climate Action,’ the Chair of the US House Committee on Oversight reported, “The fossil fuel industry has had scientific evidence about the dangers of climate change since at least 1977.  Yet for decades, the industry spread denial and doubt about the harm of its products—undermining the science and preventing meaningful action on climate change even as the global climate crisis became increasingly dire, and its deadly impact on Americans increased.”[ii]  Fossil-fuel led disinformation produced a string of defeats to aggressive climate action that stretches back more than two decades.[6]  The outcome in West Virginia v. the US Environmental Protection Agency is only the latest.

SCOTUS adopts a novel legal theory

In West Virginia vs. Environmental Protection Agency, the Court’s 6 member conservative majority blocked EPA’s authority to reduce overall carbon emissions from coal-fired power plants, the second largest source of greenhouse gases.  The Court invalidated EPA’s promulgated (but never enforced) plan to reduce greenhouse gas emissions from coal-fired energy sources through generation shifting. Generation shifting was the system developed by EPA to “shift” polluting activity “from dirtier to cleaner” sources.  Under the rules, to meet its emission reduction targets, a coal plant operator could reduce its own production of electricity, it could build or invest in a new or existing natural gas plant, wind farm, or solar installation, or it could purchase emission allowances (or credits) as part of a cap-and-trade regime. 

Even though EPA’s plan was never implemented, and the Biden administration’s new EPA rules were pending, the GOP-led Court elected to decide the case under the old plan in order to strike down EPA’s system.  To invalidate EPA’s system, the Court’s conservative jurists, who claim to oppose judicial activism, essentially re-wrote section 111(d) of the 1970 Clean Air Act.  Section 111 as passed in 1970 required the EPA to regulate air pollution according to “…the best system of emission reduction…that has been adequately demonstrated.”  Congress passed this language into law without defining what “best system of emission reduction” or “adequately demonstrated” meant, and without restrictions, clearly deferring to the EPA’s scientific expertise. 

The Supreme Court ruled in West Virginia v. EPA that ‘the best system of emission reduction’ as passed by Congress could not have included the kind of cap and trade system the EPA offered to coal-fired plants, under which the worst polluters could buy credits from other utilities that were less polluting, working a market-driven balance in emission controls.  Resurrecting a never-before cited doctrine from the Trump administration’s EPA, the “major questions doctrine,” the Court decided that more specificity is required from Congress before a federal agency can address “major questions” such as how to adjust the domestic energy mix to reduce emissions.

Under the Court’s inventive doctrine, scientific expertise found at the administrative level cannot fill in the gaps, or adapt to changing climate science, which means Congress will have to 1. Believe in science and math; 2. Understand climate science and math; 3. Calculate a workable energy mix that balances state by state energy needs with plant by plant emissions controls that fluctuate with multiple variables; and 4. Spell it out with a precise and tightly defined statutory directive.  It would be difficult for a toxic and polarized Congress to reach a consensus on any one of these; the combination makes it virtually impossible, which means there will be no industry wide climate-emissions system for the foreseeable future.  Individual plants can still be regulated, but a piecemeal approach will slow reductions by years, if not decades.  The ruling is a gift to coal and fossil fuel interests, and it will critically impede EPA’s response to climate change, “the most pressing environmental challenge of our time.”[7] 

Janet Pellegrini, Environmental Scientist for EPA (Ret.), told Moot that the “ruling is in stark opposition to the Clean Air Act and the court’s own 2007 ruling that carbon dioxide and greenhouse gases are air pollutants that can be regulated by EPA. (This) ruling is infuriating and will prove to be both destructive and expensive as we experience accelerated climate impacts causing extreme droughts, record heat trends, crop and livestock loss, habitat and wildlife loss, severe weather events including flooding, tornados that cause property damage, death and injuries, and loss of production. Climate change demands immediate and decisive action. So why would the Supreme Court delay the federal agency with the expertise and authority in addressing this crisis?”

Timing is everything.

The Court’s decision could not have come at a worse time as an unhinged autocrat funded by oil slaughters people in Ukraine, driving global energy prices and threatening political instability on several continents.  The first lesson of Putins’ war in the new global economy is that reliance on energy of finite supply- like oil- now dominates geopolitical movements and will continue to do so until we make a massive pivot toward energy that cannot be monopolized or weaponized.  Russia’s dictator weakened the democracies of Europe by supplying more than a third of their energy.  It’s an oil dependency Putin rightly calculated would hamstring NATO’s response to his aggression, and it is similar to fossil fuel’s stranglehold over US politics.

In assessing whether the world will be able to shift from finite energy sources altogether in time to avoid the worst, timing is everything.  The Intergovernmental Panel on Climate Change (IPCC) report gives less than ten years- until 2030- to stop global warming at 1.5°C, or else climate shifts will accelerate to a point of no return.[8] 

The fossil fuel industry has its own scientists, and in 2022, it no longer disputes climate science so much as insists on bending the climate prognosis to maximize profits.  Resisting government efforts to transition to clean energy, preferring to follow their own schedule, some of the heaviest investors in renewable energy, nonetheless, are the world’s oil giants. Of the six “super-majors” – BP, Shell, Chevron, Total, Eni and Exxon – most have pumped billions into clean energy projects,[iii] evidencing the extreme profitability of wind and solar, and illustrating that the world is switching to renewables, it’s just a question of when. 

The GOP Finally Admits Climate Change is Caused by Fossil Fuel

Whether the US has the political will to switch to renewables in time to avoid the worst remains in doubt, as evidenced by the Court’s decision in West Viriginia.  In spite of big oil’s effective misinformation campaign, growing weather-related calamities have brought a late sea change among Republicans, collected by The Hill’s Jim Tolbert, but it may be too late.[iv]  Freshman Sen. Mike Braun (R-Ind.) told the Washington Examiner, “I’m not afraid to talk about climate change. … We’re obviously pumping more CO2 into the air, and there’s a thing called the greenhouse effect.” Other republicans have similarly reversed course:  Sen. Lindsey Graham (R-S.C.): “I’m a Republican who believes the greenhouse gas effect is real, that climate change is being affected by manmade behavior.”  Sen. Mitt Romney (R-Utah): “There’s no question that we’re experiencing climate change and that humans are a significant contributor.” Sen. Pat Roberts (R-Kan.) sayseveryone in his agriculture-heavy state realizes climate change is happening, calling the issue “obvious.” Sen. John Barrasso (R-Wyo.), from America’s largest coal producing state, admits, “The climate is changing and we, collectively, have a responsibility to do something about it.”

The Time For Mass Conversion Is Now

Reliance on Russian oil- on any oil- not only threatens political stability, it threatens our very existence.  Scientists’ conclusions are stark:  “Deadly with extreme weather now, climate change is about to get so much worse. It is likely going to make the world sicker, hungrier, poorer, gloomier and way more dangerous in the next 18 years with an “unavoidable” increase in risks… Delaying cuts in heat-trapping carbon emissions and waiting on adapting to warming’s impacts, will miss a brief and rapidly closing window of opportunity to secure a livable and sustainable future for all.”[v] Damage inflicted by carbon emissions threatens to upend global stability and life as we know it.  Projection models predict mass migration events, extinction of species, political crises, civil unrest, and governmental collapse,[10] and predict that climate change could be the cause of 4.6 million excess yearly deaths every year.[11]

We already have the tools

The good news is that, albeit expensive, technological and battery capacity to convert to renewables has existed for at least ten years.[vi] Now that the GOP and big oil have largely stopped denying climate science, and the world sees how reliance on oil creates global risks, we have the political impetus to make immediate investments in our conversion to renewable energy, which will be cheaper in the long run than waiting until our coasts and farms disappear. Like our WWII wartime investments, massive renewable energy investments will transform our economy with jobs, purpose, and a revamped national infrastructure for the future.

The biggest winner in transitioning to renewable energy will be the consumer because renewable energy is far cheaper (not to mention cleaner) than oil and coal derived energy.  The price of utility-scale solar energy is now 3.7 cents per kilowatt hour, while power from utility-scale wind costs 4.1 cents per kilowatt hour. Compared to natural gas (5.6 cents) and coal (10.9 cents), wind and solar power is unquestionably and vastly cheaper.[vii]  Costs are even lower for rooftop solar, because consumers don’t have to pay for distribution at all.

We Are Smarter Than Fossil Fuels

Watching as Putin instigates the next world war, there has never been a more momentous thrust toward clean energy.  As long as the world remains dependent on a finite supply of oil, we will fight over it, and we will be vulnerable to powerful bad actors- foreign and domestic- who lie about everything, including climate science.   The best way to disarm petro thugs is to harvest wind, solar, and clean energy that literally swirls around us and wean the developed world off fossil fuels now, while the window of opportunity is still open.  Seen from a global security lens, no fossil fuel thug can ever stop the wind or turn off the sun.

To stop a GOP Court willing to devastate the planet to reward its supporters, every person who cares about climate will need to vote, this year, next year, and for the foreseeable future. It literally comes down to voting, every time, because there are far more people worried about climate than the 1% who are killing it.  According to Ms. Pellegrini, this Court “has pulled the keys from the burning car headed straight for a cliff and blocked a qualified driver- i.e. EPA- from taking control and left a divided Congress, some of whom receive money from the very sector requiring regulation, to navigate this complex national climate crisis. Meanwhile the United States is literally and collectively holding its breath on this deadly precipice.”  Justice Kagan agrees.  As she wrote in her dissent, the GOP bloc of the Court has substituted “its own ideas about policymaking for Congress’s.  The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much. The Court appoints itself—instead of Congress or the expert agency—the decision- maker on climate policy. I cannot think of many things more frightening.”[12]