The “Spirit of ’76” is alive and well at the Supreme Court. Back then, the colonials rejected the rule of a far-away, unaccountable government. After securing their freedom, they quickly organized a government that gave Congress, the duly elected representatives of the people, responsibility for making national policy decisions.
This week, the Supreme Court acted in accord with that spirit by rejecting a power grab by the Environmental Protection Agency and reserving for Congress the right to set far-reaching climate change policy.
The central question in West Virginia v. EPA came down to this: Who is responsible for determining if carbon emissions are a problem and whether something should be done about it? You may recall that President Barack Obama spent more than a year trying to convince Congress to pass a comprehensive bill to reduce emissions as a way of trying to stem climate change. Ultimately, he even threatened Congress, saying that if lawmakers didn’t act to reduce carbon emissions, he would – with his pen and his phone. Yet even though his own party had a House majority and a filibuster-proof majority in the Senate, Congress balked at capping carbon emissions.
Obama followed through on his threats in the form of the “Clean Power Plan” – the EPA’s proposal to force whole states and utilities to stop using fossil fuels in favor of less reliable, and often more expensive, sources like wind and solar. Always inventive, Obama asserted that the EPA could stretch the authorities in the Clean Air Act, written in 1970 to deal with toxic pollutants.
Up to that point, the law had been used to reduce toxic emissions source by source, using the best available technology. So, for example, the EPA could require an available scrubber be added to a coal plant to reduce sulfur dioxide. Now, Obama claimed, the EPA could use a systems approach and require states and utilities to switch fuel sources altogether, essentially completely remaking the entire electricity grid.