“The less we do about climate change now, the more regulation we will have in the future.” Bill Nye (The Science Guy)
As part of recovering from my gloomy mood caused by the recent one-two punch landed by the federal government against our future, I forced myself to think about the remaining avenues for fighting climate change. Those “punches” were the Supreme Court’s decision, in West Virginia v. EPA, to kill the agency’s program to phase out coal-fired power plants and replace them with gas-fired models; and the failure, once again, for a climate bill to pass in the Senate. Both developments are moving us closer to the global climate disaster’s point of no return.
These events were no doubt celebrated in some quarters, where it now appears that the unhindered burning of fossil fuels, especially coal, can proceed apace. I would caution those folks to watch out what they wish for.
Although the Supreme Court is preventing the EPA from enforcing its policy of encouraging the transition from coal to gas and, ultimately, to renewable power generation, it has not prevented the agency from simply regulating coal-fired plants. Likely, it cannot do so because Congress expressly has given the EPA the power to regulate them, and the Court’s entire rationale for nixing the “encouragement” policy is that Congress had not specifically mandated it.
So, the EPA can simply tell the coal-fired plants to clean up their act and, unable to offer them positive alternatives, let them figure out how to do it — enforcing a far-more-costly transition in the long run. Preventing that would require a much deeper foray into the legal morass of adjudicating Congress’s regulatory intent than the Court probably should have waded into in the first place.
Meanwhile, the climate battle is shifting to the states, where there are numerous possible points of attack.
For example, transportation is the largest source of U.S. greenhouse gases. While the EPA is empowered to regulate vehicle emissions nationally — in order to set a single standard for the country — it has for decades granted California a waiver to set its own standard above that of the EPA’s roughly 38 MPG baseline. (This exception was granted, initially, to fight the pervasive smog in the Los Angeles basin.)
Accordingly, California has mandated a statewide 51 MPG emissions requirement for most new vehicles sold after 2025. Other states are free to adopt California’s standards — the EPA’s requirement is a minimum — and to date 17 states, including all of the West Coast, Pennsylvania, New Jersey and most of New England, have done so, setting a de facto national standard. (These states represent the bulk of the country’s population and most of its economy.)
Meanwhile, several of the world’s largest automakers, which for decades fought federal emissions regulations, in 2020 ignored lawsuit threats from the Trump administration and signed a voluntary binding agreement with California to meet its standards. They include Ford, Honda, BMW and Volkswagen. Recently, General Motors, Toyota and Volvo have also committed to working “cooperatively and constructively” with California. Encouragingly, in January of 2022 Ford announced it was doubling production of its new F150 all-electric pickup to try to keep up with surging demand.
And California’s Governor Gavin Newsome recently unveiled an executive order proposing a requirement that 35% of new 2026 car sales in the state be zero-emission models.
Predictably, the attorneys general from the mostly fossil-fuel-producing states who filed the West Virginia case are now suing to overturn the EPA’s right to grant the “California exception” to its national emissions standards. But even if they prevail, the EPA can up its national standards to equal California’s.
By the time that’s litigated, auto makers will be producing the lower-emission vehicles and people will be buying them. It’s good to know that some ships have already sailed in the battle to save the planet.
Editor’s Note: A version of this article appeared previously in other publications as part of an ongoing series called “Your Ecological House,” written by Philip S. Wenz, the publisher of Firebird Journal.