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The Court is expected soon to render its judgment in West Virginia v. EPA. At issue in this case is whether and how the EPA can set standards for carbon emissions at power plants. When the Obama administration attempted to implement the Clean Power Plan, it said that the new standards would fight climate change, create tens of thousands of jobs in renewable energy and avoid up to 3,600 premature deaths from soot and smog.
The coal industry and conservative states want the high court to limit EPA’s powers solely to the regulation of individual power plants. They appear to have a sympathetic ear in Justice Alito. During February’s oral arguments in West Virginia v. EPA, Justice Alito badgered Solicitor General Elizabeth Prelogar to explain how the government was not overreaching by claiming “the authority to set industrial policy and energy policy and balance such things as jobs, economic impact, the potentially catastrophic effects of climate change, as well as costs.”
Unsatisfied with the answer Solicitor General Prelogar gave, Justice Alito pressed on, sounding like the head of the U.S. Chamber of Commerce, which ceaselessly fights regulations to control climate gases, saying the controls will cost jobs. Despite the data that has led the Secretary General of the United Nations to call climate change “code red for humanity,” Justice Alito told Solicitor General Prelogar that the EPA was making decisions based on “incommensurable” factors that have no common standard of measure. He asked her, “What weight do you assign to the effects on climate change, which some people believe is a matter of civilizational survival, and the costs and the effect on jobs?”
Justice Alito appears to be so vexed about the EPA’s authority that it is reasonable to be concerned that he might lead the 6-3 conservative majority to overturn Massachusetts v. EPA, the landmark 2007 decision that said the EPA has the authority to regulate carbon dioxide emitted from new motor vehicles. Writing for the majority, Justice John Paul Stevens said gases that fuel global warming “fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’” He emphasized that “The harms associated with climate change are serious and well recognized.” Justice Alito was a dissenting vote in that 5-4 decision and later explained his decision in a 2017 speech to the right-wing Claremont Institute. “A pollutant is a subject that is harmful to human beings or to animals or to plants,” he said. “Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.”
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https://www.ehn.org/supreme-court-environmental-2657356106/how-far-will-alito-go
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