SCROTUS Decision Doesn't End Authority To Regulate CO2 But Makes It As Expensive/Onerous As Possible
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To get a better sense of the ruling, I talked with Michael Wara, a scholar of climate and energy policy at the Stanford Doerr School of Sustainability. Our conversation has been edited and condensed for clarity.
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Wara: Theres sort of this Justice Roberts move thats very typical, where he says, Oh, were just deciding the case before us. But in reality, any other options that would involve, lets say, systemwide change, are pretty clearly ruled out. So could you have a cap-and-trade program [under the Clean Air Act]? The answer is no, under this decision. Could you have some sort of efficiency regulation, which was initially considered under the Clean Power Planlike, go after [electricity] demand rather than supply as a way to reduce emissions? I would say, probably notId be extremely skeptical that could survive review. Any potential regulation has to stay inside the fence line [of a power plant]. But there, the decision really doesnt say anything. So I think its possible that we could see the EPA require carbon capture and storage, and that would be the death of coal. I think theres an opportunity there to take actions, under this decision, that are kind of very traditional [under the Clean Air Act]. The reason those actions havent been taken is not that they were perceived as illegal.
Meyer: If theyre not illegal, why hasnt the EPA already mandated that coal plants use carbon capture?
Wara: It was because [such a rule] was perceived to harm certain states more than others. States that are very coal-dependent for their electricity supply would face higher costs. And so much of the Clean Power Plan was driven by a desire to minimize the costs of taking effective action. Thats really been true since the 1990 Clean Air Act, with a lot of EPA air regulation. The EPA has strived to do what it needs to do as cost-effectively as possible to deliver maximum emission reductions at minimum cost for society.
Meyer: Is there a chance that this ruling means that effectivelyI guess its still constrained by cost-benefit analysis butthat we may get more expensive climate policy?
Wara: Yeah, I think thats right. What the Court is doing today is stripping them of that interpretive flexibility that allows them to be economically efficient.
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https://www.theatlantic.com/science/archive/2022/06/scotus-epa-ruling-west-virginia/661448/