July 15 2022

July 15 2022

Supreme Court limits the EPA’s ability to act on climate, extreme weather collapsing insurance markets, the value of natural infrastructure, record-breaking floods hit Bangladesh and Australia, indoor agriculture’s use of fossil fuels

The U.S. Supreme Court, in the case West Virginia v. EPA, limited the ability of the federal government to require reductions in greenhouse-gas emissions from power plants. While not preventing the EPA from regulating these emissions, the court constrained how the EPA could approach the problem, specifically preventing the agency from issuing a rule that would transform the entire electricity sector. Instead, the EPA must take a plant-by-plant approach and restrict emissions with devices such as scrubbers on smokestacks. Of course, the science dictates that such a sector-wide transformation is necessary to protect public health and safety. The New York Times describes how the court’s decision makes it almost mathematically impossible to meet the emissions-reduction goals the Biden Administration has announced.

The plaintiffs in the case, a group of Republican Attorneys General, were originally led by Scott Pruitt when he was AG of Oklahoma before becoming Trump’s first EPA Administrator (I know you hoped that we were done with him… at least he did get crushed in the Republican primary for Senate in Oklahoma). This group argued that Congress did not give the EPA explicit authority to take a sector-wide action, and therefore it should not be able to do so. The majority of the court agreed, embracing the “major questions” doctrine for the first time. Historian Heather Cox Richardson notes that this “reversed almost 100 years of jurisprudence by arguing that Congress cannot delegate authority on ‘major questions’ to agencies in the executive branch,” and in a broader context signals “the end of the federal government as we know it.” The major-questions doctrine could be invoked to prevent federal government agencies from taking technically-nuanced action on any number of issues, all depending upon what the Supreme Court might decide is a “major question.” For a deep dive into the complexities of the decision, you can listen to the Volts podcast that interviews one of the attorneys supporting the EPA’s position (spoiler: even the attorney is not sure what the decision actually requires).

The dissent (starting in the opinion on p. 57), authored by Justice Kagan, states that “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.” By ignoring this understanding, the dissent notes that “The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.” Climate Nexus identifies the critical fallacy of the court’s decision: “While the conservative justices pretend to be giving Congress the authority that the Executive branch has supposedly usurped from it by having experts design regulations, what they’re really doing is seizing that power for themselves.”

The dissent also highlights the motivated reasoning of the majority: “The current court is textualist only when being so suits it… When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.” Indeed, the New York Times notes that, historically, “Congress came to recognize that it lacked the knowledge, time and nimbleness to set myriad, intricate technical standards across a broad and expanding range of issues. So it created specialized regulatory agencies to study and address various types of problems.”

An op-ed in the Washington Post asserts that “the court went out of its way to limit the ability of the EPA to meaningfully regulate carbon dioxide and other greenhouse gas emissions from existing power plants,” as there wasn’t actually an EPA regulation that had been promulgated (the Clean Power Plant rule, originally drafted by the Obama Administration, had been withdrawn by the Trump Administration and a new rule had not yet been issued by the Biden Administration). “This is a purely ideological stance, with no relationship to how the federal government needs to be able to function in the real world… Yes, it’s all very bureaucratic. Try meeting the needs of a nation of 332 million people without a bureaucracy.”

Grist notes that the decision could have been based on a rationale that would have constrained EPA action to a much greater extent. While this is true, an article in the Atlantic notes that the plant-by-plant approach that the EPA is being forced to take will be more cumbersome and expensive than the sector-wide, market-based approach envisioned in the draft rule. In essence, the decision concluded that “the market cannot be allowed to find its own solutions when it comes to how utilities should adjust to climate change. Instead, the EPA should instruct power plants on what technology to use to meet their goals.” Ironically, market forces alone have already caused the power industry to meet the original Clean Power Plan’s nationwide emissions target — through exactly the kinds of generation-shifting requirements the Plan contemplated but that the court just blocked. The New York Times reports that the EPA will be issuing regulations that will further limit emissions of nitrous oxides, mercury and soot from individual power plants. This will have the effect of reducing greenhouse gases as the cost impacts of these modifications will likely lead to plants shutting down instead.

The Supreme Court decision further damages the U.S. reputation on climate action internationally, and thus makes global progress more difficult. As David Wallace-Wells notes in the New York Times, “The United States is the world’s largest producer of oil, its second largest producer of gas and its third largest consumer of coal, and also its largest historical emitter by an outrageous margin, responsible for about twice as much carbon damage already done to the planet as any other country on Earth. On a per capita basis, the country has done five or six times as much damage as China, which is the second most responsible nation; given likely emissions curves this century, that gap will probably never close.” These facts require that the U.S. lead the transition from fossil fuels, a reality the Supreme Court chooses to ignore.

Bill McKibben stated in 2017 that, with regards to climate change, “winning slowly is the same as losing.” His recent article in the New Yorker notes that the court decision changes the activist calculus. Policies like tax credits “would probably pass Supreme Court muster. But beyond that it’s hard to see exactly what the point of demanding federal climate action is now; why march on the Capitol or the White House if the Supreme Court won’t let elected leaders act even if they want to?” He suggests that the inevitable disruption of business by climate change may make Wall Street the best hope for changing the national politics of the issue.

E&E News describes the growing insurance crisis in Florida, as major insurers are not renewing homeowners’ policies in response to losses from previous years (five property insurers in Florida have been declared insolvent since April). With the hurricane season approaching, Floridians must turn to the state-owned Citizens Property Insurance Corporation as the insurer of last resort (CPIC was set up after the $30 billion in losses from Hurricane Andrew in 1992 destabilized the insurance market). Private insurance premiums have increased anywhere from 30% to 100% in the last year, also driving citizens to seek another option. The CPIC policy-count has doubled from three years ago, and this raises fears that a major hurricane would drain program reserves and require millions of residents to pay an insurance surcharge. Grist reports on a similar problem affecting Louisiana, where losses from Hurricane Ida in 2021 drove several insurance companies into insolvency. California, too, is facing a similar problem as insurers abandon policy holders in fire-prone areas.

One of the global challenges of expanding solar power is where to locate the large arrays needed to produce solar electricity at scale. Rooftops, parking lots and other urban locations are ideal as they don’t disturb existing land uses, but these areas are limited and installations are expensive. Large deployments on desert lands or other open spaces are cheaper but can have unintended ecological impacts, and these locations are often remote from transmission lines. An article in Nature describes the potential of deploying floating solar panels (“floatovoltaics”) on reservoirs around the world. While such installations make up a small part of installed solar capacity now, the potential for expansion is considerable. The article states that “covering 10% of the world’s hydropower reservoirs with floating solar panels would install nearly 4,000 GW of solar capacity — equivalent to the electricity-generation capacity of all fossil-fuel plants in operation worldwide.” The Hill reports that the U.S. Army has deployed its first floating solar array. Deploying panels in conjunction with agriculture (“agrivoltaics”) is also an area of active research, as reported by Inside Climate News.

The New York Times notes that many vegetables and berries in the U.S. are increasingly likely to come from Canadian or American greenhouses as from fields in the U.S. or Mexico. More than a third of the fresh tomatoes sold in the United States last year were grown indoors. These indoor operations, or “controlled agriculture,” are not subject to the impact of droughts, freezes, heat waves or groundwater depletion. Indoor crops can be bred for flavor (not for tolerance to environmental conditions), do not need arable land and can produce more food with less water and pesticides. Thus, controlled agriculture has the capacity to help feed a world where field agriculture is exposed to major stresses, such as those generating food insecurity in Asia. A significant downside, however, is that these operations replace the warmth and light from the sun with fossil-fuel power in most instances. This results in an indoor-agriculture tomato having a carbon footprint six times that of a field-grown tomato. The Netherlands has become one of the largest producers using controlled agriculture, and 8.2% of annual Dutch natural-gas consumption goes to heat greenhouses.

Anthropocene Magazine describes the growing movement around the world to use “natural infrastructure” to build resilience to coastal flooding. Communities are experimenting with softer infrastructure — mangrove forests, salt marshes and sand dunes — that mute tides, attenuate waves and absorb waters like a giant sponge. The article focuses on Bangladesh, where mangrove forests have been cut down and replaced by berms and levees. These engineered structures have protected particular tracts of land, but made flooding worse in other areas when cyclones from the Indian Ocean push major storm surges towards land. The article also describes how the loss of wetlands and sand dunes in other regions has increased coastal vulnerability to sea level rise and storm surge. In many countries, coastal engineers are seeking to restore wetlands, or build sea walls that mimic how sand dunes absorb wave energy. Inside Climate News examines a “living shoreline” project in Jamaica Bay, New York. Yale e360 notes that, internationally, funding has lagged for nature-based initiatives such as mangrove restoration.

In the New Yorker, an article describes the ecological value of wetlands and shortsighted policies that have destroyed most of America’s original vast wetland areas. “Can we become Thoreauvian enough to see wetlands as desirable landscapes that protect the earth while refreshing our joy in existence? For conservationists the world over, finding this joy is central to having a life well lived.”

The frequency and severity of major downpours has reached the point where each bi-monthly edition of In Brief can include at least one reference to a record-breaking flooding event around the world. This time it is in northeastern India, as reported by the Washington Post. More than 130 people have been killed and millions have been affected by the recent floods. And, as a bonus, The Guardian describes flooding in and around Sydney, Australia, as “torrential rainfall” forced thousands to evacuate. While this is the second winter with serious flooding in the region, the emergency-services minister warned ominously: “If you were safe in 2021 do not assume you will be safe tonight.” The New York Times reviews why climate change is making hurricanes more damaging, and the Washington Post describes recent analyses suggesting that derechos are also becoming more intense as the climate warms. On July 5th, a damaging derecho swept through five midwestern states.

The Nevada Independent has an excellent article about the need for a reduction in diversions from the Colorado River, where the drought and the over-exploitation of the river are definitely “getting real.” The U.S. Bureau of Reclamation (USBR) has announced that diversions must be reduced by 2-4 million acre feet next year in order to stabilize the reservoirs of Lake Mead and Lake Powell (stabilization is necessary to allow delivery of water downstream and the production of hydropower). This is a lot of water. The article notes that you can entirely stop delivering water to the cities of Denver, Salt Lake City, Albuquerque, Las Vegas, Phoenix and Los Angeles and still not have saved enough water to meet the USBR goals. AP reports that the drought continues in Northern Italy, producing very low flows in the Po River and is damaging rice production (the New York Times notes that the Po region produces about 30% of the national agricultural output by market value).

An article in Fortune takes the position that carbon offsets are a necessary tool, and that those who dismiss them as a “scam” are arguing against the concept when the real problem is with execution. The author argues that offset programs can be executed effectively to help reduce emissions. In an op-ed in The Hill, renown climate scientist Ben Santer describes our political predicament in responding to climate change by recounting what happened to his car in the grocery-store parking lot.