5.4 How Supreme Court Decisions Can Shape Our Future Climate | Podcast

At EESI, our work primarily focuses on the legislative and executive branches of the government. Yet, decisions made by the judicial branch touch all of our lives and can have a huge impact on the air we breathe, water we drink, and food we eat. In this episode, Dan and Emma discuss this power with Steph Tai, a Professor of Law at the University of Wisconsin-Madison, through examining two present-day cases: West Virginia v. EPA and Sackett v. EPA. These cases highlight how Supreme Court decisions can shape federal agencies’ ability to tackle the climate crisis, water pollution, and other environmental challenges.

Show notes:

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Episode Transcript:

Dan Bresette: Hello, and welcome to The Climate Conversation. I'm Dan Bresette, president of the Environmental and Energy Study Institute. And today we have a very interesting episode for everyone on a topic we don't cover much here at EESI, and that is the Supreme Court. And specifically, we'll be talking about how Supreme Court decisions shape how federal agencies are able or not able to tackle climate change and other environmental challenges. My cohost Emma and I are extremely excited to dig into this world a little bit more, and we have just the guest to help us do it. Hey Emma, how are you doing today?

Emma Johnson: Hi, Dan. I'm glad to be back hosting with you after a great episode that you had last time with Alison about our Congressional Climate Camp briefing series, which wrapped up a few weeks ago. And as you said, for this episode, we're going to be talking about the critical role that the Supreme Court plays in shaping climate and environmental policy here in the United States. At EESI, we primarily focus on the legislative branch of our government, although our work is of course also informed by executive orders and other initiatives that come from the President. And even though we do not work directly within the judicial branch, decisions made by the Supreme Court touch all of our lives. On the environmental side of things, court rulings related to federal agencies, like the Environmental Protection Agency can greatly influence the ways we're able to tackle huge challenges like reducing water pollution and greenhouse gas emissions.

Dan: That's right, Emma, and we'll get into that topic a little bit more in this episode. In general, the Supreme Court has and continues to play a critical role in environmental protection. Past Supreme Court cases have helped secure cleaner air, cleaner water, increased protections for endangered species, the cleanup of toxic waste, and much, much more for everyone in the United States. Following current environmental cases in the Supreme Court and examining how precedent set in recent rulings might affect future cases will be especially important as we work to tackle those looming challenges you mentioned.

Emma: I couldn't agree more Dan, to get a better sense of the impact of environmental legal decisions on our lives, and to think about where we go from here, we will be diving into two present-day cases during this episode. The first is West Virginia v. EPA, which was a case from 2022 that ruled in a six-three vote that the Environmental Protection Agency cannot regulate emissions from the entire energy system at once. In his majority opinion, Chief Justice John Roberts said that if the EPA had run this program, it would have meant that Congress had overstepped their ability to give a federal agency the power to make industry wide changes. The dissenting justices argued that this program was never going to go into effect, so the court had no reason to hear it in the first place.

Dan: And the second case we'll talk about is Sackett v. EPA, which the court is expected to decide later this year. It centers around whether wetlands fall under the EPA’s definition of what is considered to be what is known as waters of the United States, which is often abbreviated to WOTUS. And that establishes protections such as pollution limits and ecosystem management strategies.

Emma: For this episode, we are thrilled to be joined by Steph Tai, a professor of law at the University of Wisconsin Madison who focuses on the intersection of environmental and health sciences and administrative law. Previous to this role, Steph has worked in the Environment and Natural Resources Division of the U.S. Department of Justice and served as a U.S. Supreme Court fellow. They also have experience working on Supreme Court amicus briefs, including on Environmental Defense V. Duke Energy Corp, and Massachusetts v. EPA. Most recently, Steph has been a co-counsel representing aquatic science societies in Sackett v. EPA. Steph, welcome to the show.

Steph Tai: Thank you for having me.

Emma: Let's start off with some background. Can you give an overview of how Supreme Court decisions have affected the ways in which the federal government, local governments, private entities, or other groups can address climate change or other environmental issues?

Steph: Yeah, so I'm gonna break this down into a few different pieces. First, it affects who can bring these cases. There's a number of cases involving environmental plaintiffs that weigh in on the issue of constitutional standing, that is, have they established sufficient injury to be before the court itself? In some court decisions, Supreme Court decisions, they've closed the door for certain types of plaintiffs, which means that there's fewer avenues for environmental plaintiffs to seek relief. The second is what kind of remedies are available, for example, what kind of remedies are available to various federal agencies in terms of accommodating environmental damages? And there's sometimes also the scope of what can be regulable, for example, in the Maui case that the decision came out in 2020. The question was whether or not a discharge not directly into waters of the United States, but was effectively a discharge into waters of the United States, had to undergo the permitting process of the Clean Water Act. And so, all of these are ways in which Supreme Court decisions can shape who can get into court, what the remedies are, what's even covered by the various federal environmental law office.

Dan: I'd like to shift now to the case that Emma introduced earlier, West Virginia v. EPA. And this was an interesting case, because it focused on a policy called the Clean Power Plan that was unveiled during the Obama administration, but never actually put into effect. And yet the Supreme Court still decided it needed to weigh in on it. The core of the case, as I understand it, was actually about it, federal agencies can implement system-wide regulations like limiting greenhouse gas emissions from power plants. Could you provide some commentary about this core idea, and maybe discuss a little bit about how the court's decision to restrict agencies in this way might have a ripple effect for other types of federal climate action?

Steph: Yeah, so clearly, this case has a long history, as you observed. It came about through the Clean Power Plan, which is passing the Obama Administration. And what the EPA and the Obama Administration did was they used the Clean Air Act language of best systems of emissions reduction to develop this plan. Now, one thing to know is that federal agencies are agencies of limited authority, so they can only work under stuff that Congress charged them to do. And that's why the language of best system of emissions reduction matters. That's something that they said, hey, EPA, you can develop what's called a BSER, or best system of emissions reduction. What the Obama Administration’s EPA said was, okay, well, what's the best system of emissions reduction, what we're going to treat it as is a generation shifting approach, basically getting power sources to shift from coal-fired to natural gas and ultimately to renewables. And that's what it treated as its system. This eventually got stayed by the Supreme Court. And during the Trump administration, they basically rescinded the Clean Power Plan by enacting a different regulation called the Affordable Clean Energy rule. That ACE rule was also challenged in court. And ultimately that was stayed before the D.C. Circuit. One thing that's weird about this case is that the Supreme Court still heard this case, despite the fact that there was no longer really a Clean Power Plan around. The Biden administration had stated that they weren't planning on putting that Clean Power Plan as exactly as it was back into place. And this gets to the sort of door opening thing that I talked about at the beginning, like who can get into court. This seems like a weird thing, right, that the Supreme Court will allow this challenge to arise, even though it was about a plan that was basically debunked. That said, the Supreme Court said, Okay, well, the states demonstrated a likelihood that this sort of plan would come in in the future and that likelihood test hasn't been used in the past. But that's nevertheless what the Supreme Court relied upon to say, Okay, wow, the states like West Virginia can get into court. What the court then said was, hey, we're gonna look at this best system of emissions reduction and see whether or not the EPA could actually do this generation shifting approach under this best system of emissions reduction under the Clean Air Act. Traditionally, under a doctrine known as the Chevron doctrine, when there's ambiguous language in a statute, courts are supposed to give agencies deference in terms of whatever their interpretation of that language is. And best systems of emissions reduction, I think at its face is fairly ambiguous, right. You know, what is the system? Is it just the plant itself? Is it a whole energy production system? That's left in, you know, that's ambiguous. Traditionally, under what's called the Chevron doctrine, what would happen is the court would have to defer to the EPA’s determination. This is where the court takes a big turn. It's not a doctrine that comes out of nowhere. It has some foundational things in a previous case regarding the FDA trying to regulate tobacco, but it's called the major questions doctrine. And what the Supreme Court said was, okay, if the thing that the agency decided to do was such a major thing, that surely Congress would have expressly said they can do that. If it was such a big thing, then you're not, the agency is not going to get that same traditional deference that it got under the Chevron doctrine. And so in West Virginia v. EPA, the Supreme Court said, Whoa, shifting generation of electricity from coal to natural gas to renewables is so major, that we want to have express terms for that in the statute itself. And since the statute doesn't contain express terms for that, we're not going to defer to what the agencies did. And so that really limits what the EPA can do. Basically, the court said, Okay, what the current language of the Clean Air Act limits them to do is just efficiency measures at that plant, they can't push them to shift from one form of fuel to another. And so that's a pretty restrictive kind of approach in terms of what this means for federal climate action.

Dan: I have a follow up question and I'm thinking you might be a good person to answer this because of your past experience as a Supreme Court fellow. The Supreme Court, nine people, they hear issues on all sorts of things. How does the Supreme Court hear a case like West Virginia v. EPA, how do they develop the expertise they need to actually rule on something like this that, you know, in this case would have overruled an agency which is chock full of people with subject matter expertise on exactly this question. Do you have any thoughts about how the court develops that expertise? Do they hire consultants? Is that something they rely on the parties to provide or other intervenors and the writers of different amicus briefs and things like that? How did they actually do that?

Steph: That's a great question. For the most part, it's going to be reliant upon all the filings before them. They don't hire their own experts, except in certain original jurisdiction cases. But that's another matter. But generally, in these types of cases, what they're going to be doing is they're just going to be reading all the amicus briefs, the main briefs, all of that to get the background. There is another avenue, though, the Federal Judicial Center is a judicial agency that actually tries to provide background expertise to courts and federal courts in general. And what they've done is they put together things like a handbook for federal judges on how to understand different areas of science. They put together manuals on how to understand developments in social media. So they do have a background research agency, the FJC, which is dedicated to providing this kind of research. But whether or not the Supreme Court justices actually try to track down the FJC’s expertise is really kind of ad hoc.

Emma: Thanks, Steph, and the Court ruled on this West Virginia v. EPA decision last year, but the Supreme Court will rule likely this year for another case, Sackett v. EPA. As I mentioned earlier in this episode, this case focused on if wetlands are protected as waters of the United States under the Clean Water Act. Why is it important that wetlands are considered under this rule? And can you tell us more about what has happened with this case so far, and the impact that the eventual decision might have for future climate and environmental protection efforts?

Steph: Yeah, so this case, well before the court has also a long history, not just with the Sacketts, but for this type of case. So there's a tension that arises inherently basically in these wetlands contexts, because wetlands, while they provide many, many beneficial environmental features, like water filtration, flood protection, ecosystem protection, they're also considered controversial by developers because developers understandably want to fill these wetlands in, right, so that they can develop something on top of it. Now, the Clean Water Act requires that developers apply to the Army Corps of Engineers to get a permit whenever they do dredge and fill operations, basically, to try to preserve some of these wetlands. The problem is that the language of the Clean Water Act uses the language “waters of the United States”, which is a very specific kind of term to delineate the difference between waters that have some kind of broader federal connection versus completely isolated waters, which are considered to be state waters. And so what happens is that there's been this whole debate about what kind of wetlands are included under that language. Now, if the wetlands directly abut some kind of thing, that's also considered waters of the United States like a navigable water, that's a no brainer. But what's at issue here is whether or not some kind of wetland is intermittently connected, right, not systemically connected all year round, can be considered a water of the United States for the purposes of the Clean Water Act, thereby requiring this permit. Why is this important? Well, the scientists that I and some colleagues represented have done a number of models about what happens if you have coverage just for the continuous surface water connections to waters of the United States versus intermittent kind of connections, and it dramatically lowers the amount of wetlands that would be covered if you take the continuous surface connection. Now, why does that matter? It matters because the Army Corps is able to provide less protection to surface waters as a result of that. Dredge and fill operations can often dig up pollutants, and those pollutants can end up in surface waters. Even if the wetland isn't continuously connected to the surface water, you can imagine that if a flood happens every five years, right, and that's only a sometimes connection, it can still lead to pollutants getting into that surface water. So, there's a lot of ways in which it could be really environmentally detrimental to environmental protection, if the only allowable connection is a continuous surface water connection. Moreover, there are other connections, I mentioned intermittent connections, but there's also underground hydrological connections, right. A wetland can be not appearing on the surface to be connected to a navigable water or water of the United States, but instead just be connected hydrologically because there are different areas, like for example, karst type areas where everything's fairly spongy underground. And so there's already this continuous connection that is underground, but not so visible to the eye. And so this too would not be covered under the most narrow version of waters of the United States that the Sacketts are arguing for.

Emma: I'm also curious to hear from you about some of the environmental justice implications of some of these decisions. Do you think that limiting the Environmental Protection Agency's ability to deploy system-wide regulations adds to the threats that frontline communities face? And how might you see the decision that comes out in Sackett v. EPA also affect vulnerable communities?

Steph: Those are great questions. So in terms of system wide regulations, I think it does create a huge threat to sort of environmental justice communities. Power plants, often, especially coal fired plants, often emit a number of co-pollutants. So not just simply carbon dioxide, which we're concerned about for climate change purposes, but also lead, also sulfur, and also particulate matter, lots of things that can negatively affect the health of communities around them. And guess what, a lot of these power plants are located in low-income communities because the property is cheap enough to buy and locate. And also because those low income communities weren't successfully able to navigate challenges to the siting of those power plants. And so for a lot of these power plants, those coal fired power plants, are located in areas where these are pretty much minority and low-income communities. And there's been a lot of studies already on this, in terms of how having a power plant sited next to these people have led to things like increases in asthma, increases in other types of respiratory disorders, and also even like lower test scores due to exposure to lead. And so I think this can be really harmful for environmental justice. As for the Sackett v. EPA, the area that this affects environmental justice communities most I would say are tribes. So a number of tribes are kind of located in some of these areas with navigable waters to which wetlands are only intimately connected or connected through subsurface connections. The problem is that many tribes, through their tribal treaty rights, have rights to sort of fish, gather wild rice, all of these types of things. And the more pollutants get into these waters through these intermittent or subsurface connections, the more vulnerable they're going to be, especially if you're relying upon sort of subsistence fishing, and you get most of your diet from the fish that you're actually fishing for, you're going to run into problems with that. And sometimes it's even worse, right? So to the extent that there are guidelines on like, for example, mercury guidelines, etc., for eating fish, tribal members tend to be exposed to even more, because the sort of a lot of these guidelines are based on the standard American diet, which often involves not eating the skin on the fish and not eating the organs in the fish. But that's something that is a traditional tribal practice. And that's also where many of the pollutants get concentrated. So I think it can doubly affect tribal members.

Dan: Really, really interesting. The cases we've talked about today will not be the last ones that we see in the high courts over the coming years. Are there any other cases that you see kind of percolating up through the judicial system that could someday find themselves before the Supreme Court that would have potentially significant impacts on our ability to advance climate change solutions?

Steph: Yeah, I think the thing that is most that jumps out most to me is a challenge to the SEC’s currently just proposed regulation to require publicly traded companies to have certain kinds of climate disclosures. So the SEC generally regulates what kind of information is it that publicly traded companies have to provide to potential investors so that investors can make more wise choices, right. That's the idea behind all of these types of regulations around. Well, recently, the SEC proposed regulation regarding how agencies have to sort of report their scope one emissions, which is a result of direct emissions, scope, two emissions, which is more indirect emissions, and then scope three emissions, which is basically supply chain kind of emissions. The idea is, right, that investors can take that into account and making their investment decisions. The more that we're seeing ESG types of investing processes in place, the more those types of investment companies are going to start looking or investment organizations, are going to be looking at that type of climate disclosure. And so I think the SEC is validly responding to sort of investor concerns. Now, here's where it gets complicated, because I think a lot of companies have already signaled that they're going to challenge the SEC regulation once the final regulation is put into place on the basis of the major questions doctrine, basically saying that climate disclosure is too big a question and too major thing such as surely Congress would have said that the agency could do so rather than allowing the agency to rely upon ambiguous language in their statute. And so I see that as probably the most likely case that's going to come about, there's probably also going to be sort of more minor kind of cases. But this is the one that I think is probably going to be the most visible one.

Dan: And that issue is something that we covered in a briefing last year. Very, very interesting. And it's also very much on the minds of members of Congress. There are a lot of I think discussions and some proposals emerging that would have some bearing on what the SEC could do and what happens sort of in the world of ESG investing generally, How aware would you say members of Congress are generally of what's happening before the Supreme Court or what's happening in courts across the country, as they think about sort of how to craft policies or how to sort of provide targeted investments or anything that might be on the minds of Congress? How aware are they of what the Supreme Court is up to in their decision making do you think?

Steph: So I think that it's going to vary a lot from office to office. It's pretty much up to each office to sort of staff their office differently. So some offices might have an economist, some offices might not, some offices might have a legal adviser, some may not. It's really just up to each representative or senator. So that's going to vary dramatically. That said, whenever they draft proposed pieces of legislation, they go through the Office of Legislative Council, the nonpartisan office within both Congress and the House of Representatives that help with drafting statutes, and they're the ones that really keep on top of things. And so to the extent that there's some kind of conflict between what a Senator or Representative wants and some recent sort of court decision, they're the ones that are going to give notice to the senator or the representative.

Dan: Steph, thank you so much for joining us today on the podcast, it was really, really cool to learn about these issues, thanks to your perspective on the Supreme Court and how they intersect with climate and environmental issues. Thank you so much for joining us, and really nice to get to meet you a little bit.

Steph: Thank you. It's an honor to be here.

Dan: Well, Emma, that was a really interesting conversation, really appreciated Steph joining us today to help us understand, you know, what's happening in these cases and what kinds of consequences these cases could have for climate action.

Emma: Yeah, I agree. Dan, I was really intrigued about what Steph was saying about the Sackett v. EPA case, about wetlands, and the point that they were making about how even if a wetland looks isolated when you are looking at it from the surface, it may seem like not connected to anything, that in fact, it can be connected underground through underground reservoirs or systems or the way the hydrology works within the soil, which means that it is in fact connected, just not in a way that we can immediately see with our eyes. So I thought that was really powerful. And maybe something if that is not something that's considered in the case, or in a ruling that comes out from the EPA, that can have a huge impact on the way that pollutants and other toxic materials can get into the waters that we all probably use to fish on or to recreate on or do anything like that. So this case seems incredibly important. And I'll be really interested in following along in the coming months.

Dan: One thing about that case, in particular, is how long that issue has been around. The issue of wetlands and protections and waters of the United States goes way, way back. And it'll be interesting one way or the other, however the justices rule, and it'll be interesting to see whether or not the case continues and other forms or the issue continues in other forms. One thing that Steph said, actually a couple of times, that kind of stuck out to me, was the idea of Congress being silent on something and how that should be interpreted. You know, sort of at heart in the major questions doctrine, if Congress didn't say it, does the agency have any latitude to do it. And I think as we think about congressional policy, legislation is an imperfect product. It's a snapshot of what the will of Congress is in any given time, and probably we would probably be better off if Congress were more willing to weigh in on these issues more frequently and settle the issues. And really, Congress is probably the branch of government that ought to be settling these issues, because they are the ones that are most representative, and they come first in the Constitution, which also probably means something. So, interesting that the justices are taking it upon themselves to interpret what Congress meant on behalf of Congress and interesting to see Congress basically allow that to happen. I'm not sure exactly what that means. But something that Steph said that stuck out to me.

Emma: Just emphasizes the importance of the work that we're doing to get these climate solutions to congressional staff and hopefully advance climate policy throughout the country. So if you want to learn more about EESI 's work on climate change and climate policy, head to our website at eesi.org. Also follow us on social media @eesionline for all of our recent updates. The Climate Conversation is published as a supplement to our bi-weekly newsletter Climate Change Solutions. Go to eesi.org/signup to subscribe. Thanks for joining us and see you next time.