What the Latest SCOTUS Decisions Mean for Our Climate

While the U.S. Supreme Court (SCOTUS) hears only a small number of arguments each year, as of late, the environmental movement has had a big stake in many of them. And attorneys like NRDC's Meredith Hankins, who has spent much of their career on issues pertaining to air pollution, are increasingly seeing their cases land on the justices' desks.

"I'm lucky enough to work on the really big rules that the Court cares about," says Hankins, a member of the NRDC team currently defending multiple Clean Air Act rules from simultaneous challenges in the D.C. Circuit and the Supreme Court.

That's why, in the midst of a dizzying string of deregulatory SCOTUS decisions in recent years, Hankins has had a window into what it all means for climate action. And the evidence piling up suggests the Court will continue to set it back-by hamstringing federal agencies and re-examining decades of precedent along the way.

SCOTUS and air pollution regulations: A moving target

Under the Court's increasing scrutiny are various federal emissions standards for the fossil fuel industry-in particular, those to regulate power plants. These facilities, of course, play an outsize role in our climate crisis.

The Court's involvement in the regulations dates back to 2016, when an unusual 5-to-4 majority decision blocked an Obama-era rule intended to shift coal and gas power plants to cleaner energy sources. That was the U.S. Environmental Protection Agency's (EPA) Clean Power Plan, which would have kicked in starting in 2022 and required the industry to cut carbon pollution by a third by 2030.

Even though the Supreme Court wasn't on board, market forces drove the industry to slash emissions faster than the EPA had originally targeted. The industry met that 2030 target more than a decade early, in 2019.

But that didn't stop the Court from intervening further. In 2021, with EPA Administrator Michael Regan poised to write a new rule on the regulation of power plant emissions, the Court agreed to hear a challenge to that authority. It followed up with the 2022 West Virginia v. EPAruling, stating that the agency could not orchestrate a sector-wide shift in the electrical grid away from plants that generate power using dirty sources (like coal) in favor of those that use cleaner ones (like wind and solar). Instead, the Court majority said, the EPA had to base standards on pollution-control technology that makes individual power plants cleaner.

The EPA listened carefully. The agency has now adopted new national standardsfor dirty power plant emissions based on tools like carbon capture and sequestration, in line with the Supreme Court's decision. And they build on market trends and tax incentives amped up by the 2022 Inflation Reduction Actthat make it easier to clean up high-polluting sectors.

The impacts of the standards are significant: For starters, they'll cut emissions by another 1.4 billion tons over the next two decades. They'll also deliver $390 billion in climate and health benefits, 20 times the cost to industry.

But now, the goalposts appear to be moving once again.

Learn More: The Court & the Environment

Alliances of anti-environment attorneys general and fossil fuel interests have challenged the carbon rule and asked the Court of Appeals in Washington, D.C., to block it while their suit plays out. But the appeals court said "no."

Determined to spare themselves the cost of complying, the opponents then appealed to the Supreme Court on its emergency docket. (NRDC and its partners filed a response opposing the request for a stay.) The alliance's move gave the Court the power to decide whether to halt the rule's implementation on an expedited timeline, without hearing oral arguments.

On October 16, the Court, in turn, chose not to grant it. For now, the case will proceed in the lower court, and states and companies will need to comply with the rule. Should the industry opponents not get the decision they're hoping for after they argue their cases further, later this year, the Supreme Court may get a new chance to intervene.

Hankins considers moves like the industry coalition's to be brazen, given that the lower court firmly denied the requests to halt the rule. (It also issued an orderexplaining its reasoning.)

"We're seeing hyperbolic claims about how the EPA is overreaching its authority-but they're doing exactly what the Supreme Court told them to do two years ago," Hankins says. "These interventions are more about the Supreme Court than the actual substance of the rules."

Four consequential decisions put climate in the hands of judges

A particularly impactful recent environmental ruling was the Supreme Court's reversal of the Chevron doctrine. Based on the 1984 Chevron USA, Inc. v. NRDC decision, the doctrine gave explicit deference to agency experts in reasonably interpreting and executing the laws passed by Congress, including those that regulate climate pollutants.

But in its Loper Bright Enterprises v. Raimondoruling this June, the Supreme Court handed that power back over to individual judges, who lack the same breadth or depth of expertise. That decision overruled a 40-year precedent that has shaped how our government functions.

As Justice Elena Kagan wrote in her scathing dissent: "In one fell swoop, the majority today gives itself exclusive power over every open issue-no matter how expertise-driven or policy-laden-involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country's administrative czar."

This judicial power grab could have a reverberating impact on a wide range of issues beyond climate change too. These include everything from the approvals of prescription drugs and consumer products to designations of endangered species habitats to the enforcement of fair labor standards.

"Part of what makes the Loper Brightdecision so significant is that it applies across the board to much of the work of the federal government," says Ian Fein, senior counsel for NRDC's litigation strategy. "And when you consider not just Loper Brightbut the overall trend line of this Court's recent rulings, it's hard to overstate the bad news. The Supreme Court is deliberately trying to make it harder for agencies to function."

The risks posed when courts take the lead on interpreting law for technical issues pertaining to pollution, specifically, was made abundantly clear last year, when the Supreme Court issued its Sackett v. EPAruling. The decision changed which bodies of water are protected by the Clean Water Act, with the Court ignoring robust agency science and declaring that wetlands shouldn't qualify for the same protections as other waterways, like rivers, lakes, or streams.

In doing so, the justices discarded the fact that wetlands are intrinsically connected to adjacent waterways and thereby impact the health of nearby water sources, including those that provide drinking water or that we fish and swim in. What's more, the unfounded decision poses lasting climate ramifications too. That's because it leaves intact wetlands-many of which have potent carbon-storing powers-vulnerable to the whims of developers and polluters.

"The effects will be cumulative," says Jon Devine, NRDC's Freshwater Ecosystems director. "Each wetland or stream lost will add to the total damage. In effect, the Court has unleashed a slow-motion catastrophe."

Two more SCOTUS decisions this summer made matters even worse for agencies-and climate action. In Securities and Exchange Commission v. Jarkesy,the Court limited the power of regulators to enforce their own rules. While agencies typically prosecute violators like corporate polluters internally, using their own administrative courts, the Court has ruled that some defendants are entitled to jury trials in federal court. This could dramatically reduce the total amount of government enforcement, allowing more lawbreakers off the hook.

Meanwhile, in Corner Post Inc. v. Board of Governors, SCOTUS substantially widened the window during which plaintiffs can legally challenge some agency rules under the Administrative Procedure Act. That's the piece of long-standing legislation that dictates how federal agencies may draw up and enforce regulations and gives the public an opportunity to weigh in. According to the Court's decision, plaintiffs who could formerly challenge a rule only up to six years after it was finalized can now object six years after the time they say they were harmed.

"It would be naive to assume that our opponents aren't going to try to use that decision to reopen and litigate things that, up until this last year, had been considered resolved and decided," Fein says.

A few silver linings

Despite these setbacks, agencies aren't powerless. "The Supreme Court's recent decisions do not change the fact that federal agencies like the EPA have legal obligations to address climate pollution, even if the decisions do make it harder for the agencies to carry out those duties," Fein adds. After all, Congress already delegated clear authority to the EPA under the Clean Air Act to help solve our air pollution problems.

But post-Chevron, the EPA will need to be that much more scrupulous in its rulemaking process. This is where NRDC's administrative advocacy experts, like Fein and Hankins, can help. Developing durable federal standards that will stand up in court is part of the job.

Encouragingly, a majority of the judges in the lower circuit courts-the arena in which most battles over climate protections are fought-remain non-ideological and interested in respecting precedent, Hankins says. "In most of the circuits, I think you still have a fair shot."

Ironically, the reversal of Chevroncould pose just as many headaches for agencies that seek to undermine regulations by defining their own novel interpretations of a law. For example, if a future EPA chose to, say, interpret the Clean Air Act in a way that gives moreleeway to polluters, environmentalists would be ready to challenge the move, and more likely to prevail in court. Then, too, a judge-not the agency-would get the final say.

The Court's lengthy shadow docket

Concerningly, the Supreme Court is also pouncing on cases that have yet to be decided by the lower courts by issuing more and more emergency stays. These orders temporarily block a law from going into effect while the case against it in a lower court proceeds. This move used to be reserved for cases in which there's an immediate risk of irreparable harm, such as in death penalty cases.

Now, the Court is increasingly choosing this route in cases concerning financial harm from regulatory compliance, as with the various air pollution regulation objections. "That means that the justices are trying to make a decision about these highly technical cases without the benefit of full briefing or a lower court decision," Hankins explains.

That's also what SCOTUS did in June, when it blocked yet another EPA clean air regulation, known as the Good Neighbor Plan. The regulation, which was just beginning to be phased in, requires fossil fuel-burning power plants in 23 states to curb their smog-forming air pollution that travels downwind, across state lines. The intervention means the rule could now be caught up in years of delay.

"The number of these cases and the normalization of this process is what seems unprecedented," Hankins says.

And the damage will add up. Choosing to halt environmental rules like these before they go into effect ultimately harms the people they are meant to help. Advocates have estimated the Good Neighbor Plan would prevent an estimated 1,300 premature deaths in 2026 alone, the year it would've expanded to industrial sources. Now, downwind communities will be left with higher rates of asthma and other respiratory illnesses, as well as increased risks to their cardiovascular and metabolic health.

Other avenues for climate action

While the makeup of the Supreme Court or its deregulatory bent aren't expected to change anytime soon, NRDC's climate advocates don't see their hands as tied.

For one, strong rulemaking at the state and local levels have become that much more important, explains Rebecca Riley, managing director of NRDC's Food & Agriculture program.

In fact, when states take the lead, they can act as "laboratories for new, innovative policies," she says, with the states often passing more ambitious protections than you might see at the federal level. To name just one recent example, in 2021, Illinois passed its landmark Climate and Equitable Jobs Act, offering a model for the nation on what a just and equitable transition away from fossil fuels can look like.

Strong regional coalitions, too, can be a pathway to remarkable climate emissions reductions, freeing states with shared interests from relying on federal rulemaking. Take the Regional Greenhouse Gas Initiative-a market-based initiative that curbs power plant pollution across 11 states in the Northeast and mid-Atlantic. That program has halved carbon pollution from the region's power plants since its start in 2009. At the same time, it's created thousands of new jobs and saved consumers hundreds of millions of dollars on energy bills.

International climate agreements will also continue to push the United States to meet its climate goals. We have already committed under the Paris Agreement, for example, to take steps to substantially reduce global greenhouse gas emissions in ways that will limit global temperature rise to 1.5 degrees. The Montreal Protocol and its subsequent Kigali Amendmentalso create obligations outside of the federal rulemaking process, around the phasedown of heat-trapping climate pollution.

And of course, everyday people-in their roles as voters, consumers, community members, and advocates-have proven, time and again, their crucial role as climate activists.

For more than a decade, a plan to build the notorious Keystone XL pipelinethreatened the climate, waterways, and health of communities along its proposed 1,200-mile route across Montana, Nebraska, and South Dakota. While the fight over the pipeline ping-ponged between courts and across administrations, a diverse coalition made up of thousands of environmental activists, landowners, and Indigenous leaders persevered in their loud opposition, underscoring the project's risks. Their continued efforts eventually encouraged President Biden to revoke the pipeline's permit on his first day in office. TC Energy, the company behind the project, called off its plan the following year.

Successes like these buoy Hankins's resolve as they chart the path ahead. The ability of NRDC and its allies to think "creatively and expansively," they say, remains key. And while there's no denying we're in a newly challenging fight for climate progress nationally, our goals cannot change. But our tactics can.

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