At the start of the summer, the Supreme Court delivered a blow to the EPA’s ability to limit greenhouse gas emissions. By August, however, Congress swung back. UW–Madison students and professors process the back-and-forth and look to what it means for future climate action in the city and state.
350 Wisconsin, a Madison-based organization that aspires to “make transformational progress toward environmental justice and solving the climate crisis by 2030,” began the summer “dismayed and disappointed.” John Greenler, the executive director, said so after the Supreme Court ruled against the EPA at the end of June. But with the passage of the Inflation Reduction Act in August, the organization posted on social media that “we need to celebrate the progress we’ve made.” While the post acknowledged the bill’s climate provisions brought positive change, it noted the legislation still “has significant problems” and “is NOT ENOUGH.”
On August 19, in need of reprieve from the back-and-forth of climate news, of doom and hope, 350 Wisconsin posted a calming photo of tree branches and shrubs in what appeared to be the entrance to a long-abandoned stone building in a forest.
“As we head into the weekend, let’s put the news aside for a moment to reflect on the beauty and irrepressibility of nature,” the organization wrote. “The harm we do as humans, though devastating, can be surprisingly temporary. Even as we work to halt and reverse the harm, we can find comfort in nature’s ultimate resilience.”
Summer 2022 will be remembered as one of the most vertiginous for climate action in America, and not just by 350 Wisconsin. Climate activists across the country have had to contend with the news of major, conflicting climate decisions made in Washington, D.C. At the end of June, one week after it ruled to revoke the right to abortion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court limited the Environmental Protection Agency’s power to regulate existing power plants in West Virginia v. EPA. Before the latter ruling, the had EPA warned the decision could lead to more than 1,000 premature deaths from air pollution every year. After the ruling, The New York Times Editorial Board criticized the 6-3 majority for the decision, which “sabotages efforts to protect public health and safety” and “threatens the ability of federal agencies to issue rules of any kind, including the regulations that ensure the safety of food, medicines and other consumer products, that protect workers from injuries and that prevent financial panics.”
The justices’ considerations date to the 2015 Clean Power Plan, a Clean Air Act program that allowed the EPA to regulate pollution from existing stationary sources of energy across states by defining the “best system of emission reduction.” This resulted in two kinds of proposed regulations: efficiency improvements for coal-powered plants, and “generation shifting” improvements that would require plants to move from coal to natural gas and renewable energy sources.
States challenged the Clean Power Plan, and the Trump administration replaced it with the Affordable Clean Energy (ACE) rule, relaxing emissions standards and removing generation shifting provisions. In 2021, the D.C. Circuit Court overturned the ACE rule, and the Supreme Court accepted state petitions to decide on the power of the EPA.
“One thing to recognize that’s not always obvious to non-law folks is that the federal government is of limited authority in the sense that federal agencies can only do the things that are authorized for them to do by Congress,” said Steph Tai, who teaches environmental law, administrative law, natural resources law, and food law at UW–Madison. “One of the questions that the Supreme Court granted cert on [agreed to consider] is whether the Clean Power Plan went beyond what the Clean Air Act authorized.”
To rule on the case, the court invoked the “major questions doctrine.” In the majority opinion, Chief Justice John Roberts noted this means “a clear statement [of intent] is necessary for a court to conclude that Congress intended to delegate authority [to the EPA]. … It found none.” Roberts limited his interpretation to this legal question. In contrast, in her dissenting opinion, Elena Kagan commented on the stakes of the decision, listing the destructive effects of climate change and arguing that “the Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy.”
“The problem with the major questions doctrine is that it allows for that kind of policy substitution,” Tai said. “Is there a line between what is too major of a problem that Congress should address or not? You can see how easy it is to cherry pick a sort of artificial line based on whether you prefer an agency to be able to do something or not.”
The justices who voted against the EPA also dismissed the argument that legislators wrote the Clean Air Act with broad language to allow for future actions such as generation shifting. Notably, this departed from the conservative majority’s textualist approach.
“Congress knows what it doesn’t and can’t know when it drafts a statute,” Kagan argued in her dissent, “and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.”
“The actions of the EPA fall under the literal textualism,” Tai explained. “That’s why it’s interesting the majority doesn’t cite too many dictionary definitions; the dissent does. [The court is] saying that, even if [the Clean Power Plan] technically falls under a textualist reading in the statute … it’s not covered because it’s too big.”
After Despair: Local and Federal Climate Action following West Virginia v. EPA
The Supreme Court’s decision limited the federal government’s ability to regulate emissions through the Clean Air Act, bringing attention to the need for a multi-level response to climate change, according to Morgan Edwards, an assistant professor at UW–Madison’s La Follette School who teaches courses about cost-benefit analysis and evidence-based policymaking.
“It highlighted the importance of a full government response to the climate crisis that includes congressional action and city, state, and local action,” Edwards said. “In the climate action space, when we were seeing these periods of delayed action at the national scale, that points to the importance of state and local action because it can lead to real emissions reductions but also because it can empower folks to be involved and see meaningful change in their own communities.”
Despair swung to hope with the second major national climate decision of the summer: the Inflation Reduction Act, “a climate agreement that preserves tens of billions of dollars for clean energy and pollution cleanup” signed by President Biden on August 16. It includes significant climate provisions such as tax credits for purchases of electric vehicles and solar panels, consumer rebates for heat pumps, and a potential impact of one billion metric tons of greenhouse gas emission reductions by 2030. Wisconsin residents and business owners will benefit from these rebates, reductions, and credits, as well as approximately $4 billion dedicated to clean power investment in the state by 2030.
“The scope of it is just huge,” said Edwards, who also leads the Climate Action Lab, a research group studying the climate impacts of local, national, and international policies. “It doesn’t get us all the way to the 50 percent [greenhouse gas pollution reduction] that President Biden proposed, but it gets us a large fraction of the way there. … It exceeds what we had thought could happen with that kind of action alone, so this is definitely a meaningful moving of the needle.”
In mid-September, Madison Mayor Satya Rhodes-Conway published a blog post praising how the Inflation Reduction Act “will help Madison reach our climate goals” with incentives for individuals and businesses that complement the programs in the city’s Climate Forward Agenda.
“While it will take some time for the full effect of this landmark climate law to be felt,” she wrote, “I am sure that we won’t need to wait until April to see the new accomplishments and ambitions that this unprecedented federal investment in our climate will unlock.”
Jessica Price, the sustainability and resilience manager for the City of Madison, described how the Inflation Reduction Act “provides investment at all levels”—local governments, individuals, and businesses—and “makes climate action more accessible to everyone.” She called the legislation an act of “meaningful” leadership that “helps us accelerate and expand our work by having more support.”
“Madison has some pretty ambitious climate and energy goals: we want to reach 100 percent renewable energy and net zero carbon emissions for city operations by 2030 and community-wide by 2050,” said Price, a Nelson Institute alumna. “We’re doing all we can to really move the needle on that, but being able to have federal programs that are in alignment with the work that we’re doing will help us go a lot faster.”
“We’re going to benefit, even for things that don’t touch down here in Madison,” Price added. “Climate pollution and air pollution don’t always obey jurisdictional boundaries, so this really is an opportunity for us to be seeing huge changes that are going to be good for our climate, good for our health, and good for our economy.”
The bill represents a moral victory for climate activists as well as a direct rebuke to the defeat of the Clean Air Act in the Supreme Court this June. “The new law amends the Clean Air Act,” The New York Times first reported, “to define the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant.’” The bill included the language despite “a last-minute, mostly unsuccessful predawn battle to remove the language from the legislation” by Republicans. It explicitly allows the EPA to regulate greenhouse gasses and the burning of fossil fuels, meaning that, according to The Atlantic, the EPA can “pass much stricter rules than it could have previously.”
The Inflation Reduction Act could also inspire state and local climate action. In turn, Edwards explained, this could lead to new federal policy.
“National action is a sort of tide that’s rising all the boats, and then we have individual states who are taking bold action above and beyond what’s being done at the federal level,” Edwards said. “That’s important because it’s reducing emissions and also because we talk about states being the laboratories of democracy, and so we can pilot new, more innovative types of climate action at the state level and, the ones that work, scale them up to the federal level.”
Wisconsin already stands out as one of the few crucial states that analysts turn to predict the trends in national policy and elections (a recent op-ed called it “the most fascinating state in American politics”). It has not made progress on climate like states with more progressive legislature, such as California, and can be studied how politically gridlocked states might move toward more aggressive climate action—and how its residents feel about the possibility of change. For Edwards, there is still reason for hope.
“From my own personal experience,” she said, “there has been this rise in climate doom type conversations, and I think what we saw with the Inflation Reduction Act is that optimism is warranted, still, and things can change really quickly in policy spaces.”
Jacob Breit, a senior at UW–Madison, has noticed the feelings of climate doom in students. He welcomed the signing of the Inflation Reduction Act, as he believes it will benefit the campus community with its allocations for environmental research.
This fall, his first semester as the Sustainability Chair for Associated Students of Madison, he aims to alleviate the stress of those immersed in climate action, and he hopes to mobilize all students—even those students not ordinarily involved with sustainability or climate action—to act on their feelings.
“I think that a lot of students take a really negative affect to a lot of things, and they take it to heart, they get impassioned about it,” he said. “But there’s two different ways you can go with passion. Passion you can either use to empower yourself and to work to see things through, or you can have passion that can eat you up to your soul and you can’t do anything. That’s always my goal, when I talk to students, to make sure they take all of that energy and that passion they have—and do something with it.”
By: Marek Makowski