Democrats decry U.S. Supreme Court curb on federal authority as state’s plan faces lawsuits in Oregon Court of Appeals.
Oregon will press ahead with state efforts to curb greenhouse gases despite a U.S. Supreme Court decision disallowing a federal agency to do the same.
The high court’s 6-3 ruling announced Thursday, June 30, says the Environmental Protection Agency does not have specific authority under the 1970 Clean Air Act to limit carbon emissions from existing power plants. The lawsuit was filed by West Virginia, a coal-producing state, and consolidated with related cases.
Gov. Kate Brown decried that decision. So did Attorney General Ellen Rosenblum, who represented Oregon in support of EPA’s 2015 effort under President Barack Obama to regulate power-plant emissions — and against the subsequent effort under President Donald Trump to repeal those rules.
Also weighing in against the decision were Oregon’s U.S. senators, Oregon Senate and House Democrats and the NW Energy Coalition, which consists of more than 100 environmental, civic and human services organizations and clean-energy businesses.
“This Supreme Court decision undermines 50 years of federal progress under the Clean Air Act,” Brown said in a tweet after the decision. “Oregon will continue to lead the way to address climate change at the state level, moving to 100% clean energy, capping emissions and taking a comprehensive approach to climate change.”
The Oregon Environmental Quality Commission approved a climate plan on Dec. 16, more than 18 months after Brown issued an executive order to do so. The Democratic governor acted after walkouts by Republican minorities in both chambers of the Legislature thwarted votes on climate-change bills in 2019 and 2020.
The plan sets targets of 50% reduction by 2035 and 90% reduction by 2050, based on 2017-19 levels.
The plan combines traditional regulation of 13 large stationary sources, such as manufacturing plants, with a system of credits that suppliers of gasoline, diesel and other fossil fuels can spend on projects to reduce greenhouse gases — particularly in low-income and minority neighborhoods and rural areas that face greater negative environmental effects. These are known as “community climate investments,” although polluting companies can use them to fulfill only part of their obligations to reduce greenhouse gases.
Three separate challenges to the plan were filed in March with the Oregon Court of Appeals. All argue that only the Legislature, not the governor, can empower the commission to draft a plan. One is by the Western States Petroleum Association. another by Oregon’s three natural gas utilities — NW Natural, Avista and Cascade Natural Gas.
The third is by a consortium of industry groups — Oregon Business & Industry, Alliance of Western Energy Consumers, Associated Oregon Loggers, Northwest Pulp and Paper Association, Oregon Farm Bureau Federation, Oregon Forest & Industries Council, Oregon Manufacturers and Commerce, Oregon Association of Nurseries, Oregon Trucking Associations, Western Wood Preservers Institute — plus Space Age Fuel, based in Clackamas, and Otley Land and Cattle in Burns.
In a bill that the Legislature passed and Brown signed last year — and that has not been challenged in court — Oregon’s major utilities must generate 100% carbon-free power by 2040. Both Portland General Electric and PacificPower supported that legislation.
States take lead
The U.S. Supreme Court ruled back in 2006 that the EPA had the authority under the 1970 Clean Air Act to regulate greenhouse gases.
“This (new) ruling is another reminder we are dealing with a new Supreme Court where a majority of the justices have demonstrated little regard for past legal precedent,” Rosenblum said in her statement.
“This chilling ruling curtails the federal government’s ability to protect us from greenhouse gases and carbon emissions under this part of the Clean Air Act. I will continue to work hand-in-hand with like-minded state attorneys general on strategies to mitigate climate harms in a comprehensive manner at both the federal and state levels.”
“We will not be derailed. Our future — and our children’s and grandchildren’s — depends on stepping up this critical work and never giving up.”
The EPA plan under Obama never took effect because of lawsuits. But Trump’s attempt to do away with it also failed because of a lawsuit filed in 2019 by 22 states, including Oregon. As it stands, carbon emissions from power plants have dropped, largely because utilities have turned away from coal.
Still, Lauren McCloy, policy director for the NW Energy Coalition, said the Supreme Court decision lessens the authority of the federal government to act on greenhouse gas emissions.
“Despite the best efforts of the Biden administration, today we may have lost a critical tool in the toolbox for EPA to adopt certain types of emissions standards. The message to states is, ‘you’re on your own’ when it comes to comprehensive efforts to curb climate pollutants,” she said.
“But, to be honest, this is where we’ve been since 2016. The Clean Power Plan never went into effect, and it is still not in effect today. Yet, somehow, we still have managed to reduce power sector emissions significantly. In the absence of leadership at the federal level during the Trump administration, states doubled down on climate action, and the market has shifted to low-cost, clean energy. We have no choice but to redouble our efforts at the state and regional level, and I fully expect that’s what we’ll do.”
Senators speak out
Oregon’s U.S. senators, both Democrats, were among the 190 members of Congress who in January signed a friend-of-the court brief in support of EPA’s authority to regulate greenhouse gases under the Clean Air Act.
Sen. Ron Wyden is chairman of the Senate Finance Committee, which has prepared a package of federal tax credits to refocus development of nonpolluting energy. He said that package is ready to be attached to other pending legislation.
“The Supreme Court’s effort to protect polluters that spew poison into our air and water continues apace. The Republicans on the Supreme Court are not going to allow any meaningful administration efforts to combat climate change,” he said in a statement.
“The only way to tackle this problem is through congressional action, which is why it’s so important that Congress pass our clean energy tax credit package.”
Sen. Jeff Merkley sits on the Senate Environment and Public Works Committee, which has authority over EPA. He had similar criticisms of the court’s decision:
“Fossil fuel companies may want to prioritize their profits ahead of kids’ health, farmers’ livelihoods, working families’ homes, and our national security — but it’s unconscionable for justices handpicked by the Federalist Society to go to extreme lengths to help them do it.
“It’s particularly egregious that the court’s conservative majority would violate centuries of precedent by going out of its way to consider this case when there’s no pending EPA rule to even strike down. It’s a testament to how far they will bend the rules to serve the corporate interests who financed their dark money confirmation campaigns, and to how far they have dragged down the once-great institution of the court.
“While climate chaos is an existential threat to our way of life, this decision is about even more. It’s the latest in a long line of dangerous decisions by an extremist court to roll back fundamental protections for Americans. The Supreme Court is replacing government ‘of, by, and for the people,’ with ‘of, by and for the powerful.’
“Today’s decision is an egregious giveaway to powerful corporations at the expense of the people. But we will not stop fighting to protect our health, our democracy and our future.”
State senators react
Reactions from Democratic state senators:
• Senate Majority Leader Rob Wagner of Lake Oswego: “Today’s ruling in West Virginia v. Environmental Protection Agency reflects a huge step backward in our national fight for clean air and environmental sustainability. This is yet another extreme decision from a U.S. Supreme Court stacked with conservative judges handpicked by corporate special interests. Now more than ever before, Democratic leadership at the state level stands as a critical line of defense against our hijacked federal judicial branch.”
• Sen. Kate Lieber of Beaverton, who leads the Energy and Environment Committee: “The scientific community has been clear: we are running out of time to combat the climate crisis. We have made meaningful progress here in Oregon, including passage of Oregon’s historic Coal to Clean Act (2016). In the face of this decision, action from Oregon and other states will be even more important. We need to call on Congress to pass clean energy legislation and move the needle forward nationally.”
• Sen. Kayse Jama of Portland, who leads the Housing and Development Committee: “Today’s decision creates immediate and devastating consequences in the EPA’s ability to effectively regulate polluters and fight climate change. Unfortunately, the court’s shift towards deregulation has the potential to undermine the work of other federal agencies we count on to protect our civil rights and public health. In Oregon, we have a duty to protect those who are bound to feel these devastating consequences.”
State reps react
A joint statement was issued by Democratic Reps. Jason Kropf of Bend, Ken Helm of Beaverton, Zach Hudson of Troutdale, Pam Marsh of Ashland, Khanh Pham of Portland and Andrea Valderrama of Portland:
“Today’s Supreme Court ruling will give corporations and special fossil fuel interests even more power to determine our future and survival as a planet, despite decades of precedent and the many climate scientists repeatedly sounding the alarm that we face even more catastrophic disasters as greenhouse gas emissions rise.
“This will be detrimental to our health, safety, and well-being, as communities across the planet face disasters like wildfires, ice storms, drought, flooding and extreme temperatures. In Oregon, we’ve seen this crisis up close. During last year’s heat dome, dozens of people, including a farmworker, died due to excruciating temperatures. Our state is also grappling with severe drought that strains our natural resources and communities.
“We know low-income, rural, BIPOC, youth, women, LGBTQIA+, immigrant and refugee communities are hit hardest by these climate disasters. In fact, studies show BIPOC communities experience disparate health outcomes from increasing environmental hazards that impact reproductive health. Years of redlining and racial discrimination have displaced communities of color into neighborhoods with low tree canopies and contaminated water and air. This means the need for environmental and reproductive justice is urgent in light of the Supreme Court’s ruling last week on Dobbs v. Jackson.
“It is clear the Supreme Court has no interest in legal precedent, but rather, forcing through their own partisan agenda and special interests. It is therefore the responsibility of the Biden administration and Congress to use the power voters have clearly given them to put a check on the judicial branch.
“In Oregon, we have responded to this crisis with vision and resolve, centering communities most impacted.
“As Oregonians, we are committed to taking even more action, but we cannot do it alone. As a country, we have a small window to change course and show what is possible if we all work together. Now, more than ever, we must be united in the fight for a safer and more stable present and future for ourselves and the youth who will inherit it.”
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