A Supreme Court ruling that limits how federal environmental regulators can force power plants to shift away from fossil fuels could delay efforts to fight climate change, including in Florida, legal experts say.
In an opinion released Thursday, justices voted 6-3 to limit the Environmental Protection Agency’s authority. Republican attorneys general representing 18 states (along with Mississippi’s governor) brought the case, West Virginia v. EPA. Florida was not among them.
“It will slow Florida’s transition to getting to zero carbon emissions,” said Susan Glickman, director of Florida Clinicians for Climate Action, an environmental advocacy group. But “some of the transition to clean energy which is already underway will continue under its own momentum.”
The state has mostly abandoned coal plants in favor of natural gas — relatively cleaner than coal, but still a major producer of greenhouse gasses that fuel global warming. The market could continue to steer electric utilities toward wind and solar power as gas prices spike, Glickman said.
America’s transition to renewable energy needs to happen more quickly, scientists say, if people are to avoid key tipping points for climate change. Temperatures can only rise so much before the consequences — such as oppressive heat waves and rising seas — become irretrievably worse.
“Most environmentalists say that (the) law is necessary for there to be really significant changes,” said Paul Boudreaux, an environmental law professor at Stetson University. The Supreme Court’s ruling restricts the reach of existing law.
The court’s ruling could complicate President Joe Biden’s plans to combat climate change. Its detailed proposal to regulate power plant emissions is expected by the end of the year. Though the decision was specific to the Environmental Protection Agency, it was in line with the conservative majority’s skepticism of the power of regulatory agencies and it sent a message on possible future effects beyond climate change and air pollution.
Biden aims to cut the nation’s greenhouse gas emissions in half by the end of the decade and to have an emissions-free power sector by 2035. Power plants account for roughly 30% of carbon dioxide output.
The Environmental Protection Agency under former President Barack Obama had tried to deploy a sweeping view of the Clean Air Act to reduce planet-warming carbon dioxide emissions from power plants. That policy was challenged in court before it took effect and later replaced by a narrower approach under former President Donald Trump, which was then also struck down in court.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ ” Chief Justice John Roberts wrote in the opinion. But he added that Congress has not given the Environmental Protection Agency “the authority to adopt on its own such a regulatory scheme.”
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“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Roberts wrote.
He was joined by the court’s five other conservative justices. The three liberal justices dissented. Justice Elena Kagan wrote: “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high.”
The problem, environmental lawyers say, is that members of Congress rarely pass major policies today. Partisan gridlock has left the country dependent on environmental laws from the 1960s and 1970s, before scientists knew as much about fossil fuels’ role in climate change.
“We don’t really have another federal tool, so that leaves it up to the states,” said Erin Ryan, director of Florida State University’s Center for Environmental, Energy and Land Use Law. “But I think the likelihood that Florida is going to move independently seems low.”
State legislators in recent years have declined to seriously consider proposals to set emissions caps or aggressively cut fossil fuel use. The Florida Department of Environmental Protection helps regulate power plants on the EPA’s behalf, and a spokesperson said the agency was closely following the West Virginia case.
The ruling sets up more years of the status quo, according to Boudreaux: burning natural gas at plants like Tampa Electric’s Big Bend Power Station in Apollo Beach. Natural gas accounted for about three-quarters of Florida’s net energy generation in 2020, according to the U.S. Energy Information Administration.
Tampa Bay’s main electric utilities say they have goals to lower emissions, and the Supreme Court’s decision will not sway them.
“Tampa Electric is working toward our vision of net-zero carbon emissions by 2050,” said Cherie Jacobs, a company spokesperson. “The outcome of this case won’t affect our goal of achieving that vision.”
Duke Energy Florida’s commitment to stop using coal by 2035 will similarly not change, said spokesperson Ana Gibbs. Natural gas makes up about 85% of the company’s fuel mix, she said. Duke Energy, which operates in multiple states, has reduced CO2 emissions past levels called for by the Obama-era plan, according to Gibbs.
Relying on fossil fuels has already proven costly, said Glickman, who is also a consultant to the Southern Alliance for Clean Energy. Gov. Ron DeSantis’ administration is spending hundreds of millions of dollars to build defenses to future floods that will grow with sea level rise.
Tampa Bay is exceptionally vulnerable to floods from hurricanes and tropical storms, a danger that the Tampa Bay Times detailed in a recent special report, “Rising Threat.” As water levels creep up, storm surges will reach farther inland, imperiling homes and people blocks from the shore.
“If there is no limit on carbon pollution, what we’re doing in Florida is allowing polluters to pollute for free,” Glickman said. “We are all paying for it.”
Biden, in a statement, called the ruling “another devastating decision that aims to take our country backwards. While this decision risks damaging our nation’s ability to keep our air clean and combat climate change, I will not relent in using my lawful authorities to protect public health and tackle the climate crisis.”
West Virginia Attorney General Patrick Morrisey, who led the legal challenge to the Environmental Protection Agency’s authority, said it “can no longer sidestep Congress to exercise broad regulatory power that would radically transform the nation’s energy grid and force states to fundamentally shift their energy portfolios away from coal-fired generation.”
Adding to the unusual nature of the high court’s involvement, the reductions sought in the Obama plan by 2030 already have been achieved through the market-driven closure of hundreds of coal plants.
Power plant operators serving 40 million people called on the court to preserve the companies’ flexibility to reduce emissions while maintaining reliable service. Prominent businesses that include Apple, Amazon, Google, Microsoft and Tesla also backed the administration.
The Associated Press contributed to this story.