The U.S. Supreme Court, in its notable final decision of this term, regarding the Environmental Protection Agency (EPA) regulating emissions from power plants, appears not to have addressed in any way the Green New Deal zealots’ false claim that CO2 is a pollutant. Rather, it addressed Constitutional powers given to Congress, and prohibited the EPA from exercising those powers independent of mandates to it by the Congress. The three-judge dissent written by Justice Elena Kagan assumes that the only issue of the case is the economic policy which must flow from “the most pressing environmental challenge of our time.” The majority decision asserts that the Clean Air Act did not give the EPA the power to decide on economic policies which must be implemented across the nation—that power is reserved to the Congress—but only on pollution and emissions limits for facilities producing power by various technologies. The decision does not, in fact, prevent the EPA from continuing to do the latter in conjunction with the states, as it has done under the 1963 Clean Air Act (CAA).
The ruling explains that the EPA promulgated a “Clean Power Plan” rule in 2015 under the CAA, dealing with CO2 emissions from existing coal- and gas-fired plants. The EPA could determine the “best system of emission reduction (the BESR) that has been adequately demonstrated” for the existing source, and then rule how low a limit could be placed on emissions using that system; the states would have to make rules to keep power plants under that limit.
The EPA defined three “building blocks” for determining the BSER for coal and natural gas plants. But fatally, in the Court’s opinion, the second block was the replacement of a coal-fired plant by a gas-turbine plant, and the third block was the replacement of either or both by wind, solar, geothermal, or hydro “renewables.” From there, it was a short step to recommending “generation shifting” by replacing the plant or by participating in a cap-and-trade program—which did not exist, but which the EPA was recommending. And from there, the EPA came to determining what share of national power generation should come from coal, natural gas, renewables, and setting the maximum emissions limits for each power technology, in order to shift the national power mix to those shares.
