Unpacking an Outcome: West Virginia v. EPA - part three
In June 2022, the Supreme Court ruled in West Virginia v. EPA that the Environmental Protection Agency (EPA) did not have the authority to regulate greenhouse gas emissions from coal-fired power plants. In our last article, we discussed a few reasons for this decision – most notably, the major questions doctrine.
Today, we sat down with Jim Rogers, an environmental lawyer who worked for the Office of General Counsel within the EPA in the 1970’s – and the father of our founder, Alison Rogers. During his time at the EPA, Jim was involved in litigation of cases and implementation of the Clean Water Act, a policy which governs water pollution. While Jim primarily focused on the Clean Water Act rather than the Clean Air Act – the policy discussed by the recent EPA case – he provided valuable perspective on both the progress the US has made since the 1970’s and what this court case could mean for the future.
The past: Progress since the 1970’s
We started off our conversation by talking about the EPA itself. Jim pointed out that in many ways, the EPA has already created groundbreaking environmental change. In the early 1970’s, when the environmental law field was just beginning, water and air quality was completely unregulated. “I saw the change in the country from unregulated water discharges to regulation,” he said. “And that was a success story.”
Other successes: hazardous waste and sewage. In the 70’s, the EPA defined what hazardous waste was, and despite being sued many times, the EPA won most of the cases. And the EPA also strongly decreased the discharge of raw sewage into waterways.
Essentially, Jim pointed out what can often go overlooked: environmental progress that has been made already. It’s a reminder that the US has already forged steps, and can make even more steps in the future.
Moving Forward
Many of us may be wondering – what exactly does the West Virginia v. EPA ruling mean for the future of environmental progress? Jim had a few insights.
The EPA
According to Jim, West Virginia v. EPA indicated that the EPA couldn’t regulate power plants without that authority written in black and white. Therefore, the EPA will likely now ensure that it has a clear statutory basis (authority written in a law) before it starts a major new plan, like the Clean Power Plan.
Excitingly, though, now there is a new law that cements this authority in place. In August, Congress passed a budget bill which includes substantial investments into climate change solutions – and amends the Clean Air Act to define the CO2 produced by the burning of fossil fuels as an air pollutant. In other words, this new law does exactly what the Supreme Court case required: it explicitly gives the EPA the authority to regulate greenhouse gas emissions.
So what does this mean for the EPA? With this new law, Congress directly defines CO2 as a pollutant. Therefore, this solidifies the EPA’s ability and responsibility to combat greenhouse gas pollution from the power sector.
State and local governments
As we discussed in our last article, state and local governments could play a key role in environmental policy if challenges continue to occur at the federal level. According to Jim, states traditionally have a lot of discretion for how much they want to regulate. In other words, if states want to, they can create and enforce stronger regulations on, for example, water quality, than the federal standard. This creates a scenario of hope, where individual states create the change needed, but it also creates a problem. In a potential future, some states may choose to regulate strictly, while others will regulate only to the minimum federal standard. This could prevent consistency throughout the country.
Industry
Another group is industry – the manufacturers and companies themselves. Jim suspects that many companies have quietly accepted that the world has changed – for example, many car manufacturers are beginning to further promote electric vehicles, and almost all large companies now have corporate social responsibility programs. Despite this, many companies are resistant to environmental changes, and industry has a long way to go – but this slow shift is a reason for hope.
The environmental movement as a whole
Jim also had a few thoughts about the environmental movement broadly. Primarily, he indicated, the environmental movement has an opportunity to emphasize how climate change impacts humans. For example, one reason why many people believe the EPA is unnecessary is because they think that it simply protects rare things, like rare plants that many people would never see. However, messaging that emphasizes how environmental ills like climate change affect human health and wellbeing would allow people to see how the environment connects to them, and influence them to change their behavior.
Bottom Line
In our interview, Jim gave us some great insights into the inner workings of the EPA in the past, and how the environmental movement might look in a post-West Virginia v. EPA world. One thing that ran through the whole interview, though, was Jim’s general sense of optimism. Not to be unrealistic – this recent court case demonstrates that the EPA faces opposition in its implementation of climate regulations. However, as Jim pointed out, it is possible to create radical environmental change: the EPA has done it before, with water quality, hazardous waste, and sewage management. There is an opportunity for hope, and I’d argue that – in conjunction with realism – a conviction that we can create environmental change is essential for making that change happen.
By Karlie Hayes, Marketing Strategy Intern, karlie@usefull.us