Politics + Green-Sports

Supreme Court Sabotages USA’s Ability to Reach Its Climate Goals

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Thursday’s 6-3 decision by the United States Supreme Court’s conservative majority in West Virginia v. EPA sharply curtails the Environmental Protection Administration’s (EPA) ability to regulate greenhouse gases under the Clean Air Act.

In particular, the ruling limits the EPA’s ability to reduce pollution and emissions from power plants, the second-largest source of greenhouse gases in the nation, en masse, with dirty coal-fired power plants being a key beneficiary.

There is no way to sugarcoat it: This will make it much harder for the USA to meet its climate goals. The Biden Administration has pledged to reach 100 percent clean electricity by 2035, and to get to the United States’ goal under the 2015 Paris Agreement of reaching 50 percent economy-wide emissions by 2030. The attainability of either of these goals was a long shot before the ruling. Now the odds of this #ClimateComeback being realized are slim and none and Slim’s on his way out of town.

GreenSportsBlog offers the comments on the West Virginia v. EPA ruling from climate-minded athletes, Green-Sports leaders and climate policy experts. And then we offer our own take.


Susan Dunklee, 3X US Olympian in Biathlon, Director of Running, Craftsbury (VT) Outdoor Center, EcoAthletes Champion

Dunklee doesn’t understand how the Supreme Court could NOT let EPA regulate CO2 emissions: I believe this decision is one that could set the us back significantly in our battle to reign in carbon emissions at a time when we need to be cutting them at scale. If the EPA, which is the organization designated by Congress to protect the environment, doesn’t have real ability to regulate greenhouse gas emissions from power plants, then what organization does? As a biathlete, I am perfectly ok to accept a loss when the rules of the game are fair. Here, it feels like the Supreme Court is turning the law against climate fighters, which is madness.


Susan Dunklee (Photo credit: Manzoni/NordicFocus)


Jacquie Pierri, EcoAthletes Champion and American Ice Hockey Player Playing and Living in Bolzano, Italy

Pierri sees real danger in having unelected judges who are not experts on climate taking away the rights to a healthy climate: The models are clear that we need to rapidly ramp down emissions from the power sector and the transportation sector, immediately if not years ago. Thursday’s ruling hamstrings efforts in a way that we as a species don’t have time for and the effects will be felt by the most vulnerable Americans. We will see more disastrous health outcomes from poor air quality and extreme weather resulting from climate change.

The view from Europe of the West Virginia v. EPA Supreme Court decision is, not surprisingly, decidedly negative: Pretty much across the board, people overseas are looking at the USA with bafflement thanks to the regression and misalignment with reality of the Supreme Court ruling. As the EU makes radical and necessary decisions about banning internal combustion engine (ICE) vehicle sales after 2035, the US Supreme Court ruling has pulled the rug on the already insufficient action America has taken to reduce power plant emissions.

While the EU ferociously debates HOW to meet climate targets, we continue to deny whether anything should be done to reverse our climate emissions. While the EU debates how to transition away from gas amid Russia’s aggression on Ukraine, we continue to delude ourselves that continuing to burn fossil fuels has no impact at all. I’m discouraged by the ruling, but not surprised given this court’s track record. I do remain hopeful, however, that the Biden administration will present immediate climate action through a different legal route to dodge the ruling. 

Jaquie Pierri (Photo credit: CWHL)

Dr. Allen Hershkowitz, Environmental Science Advisor to the New York Yankees, NBA, and Major League Soccer

Hershkowitz’ initial reaction in an email volley: Words cannot describe how unhelpful this legally terrible decision is. From the perspective of climate science it is authentically psychotic. In the numerous Zoom meetings I had Friday with senior officials at some of the leagues and teams I advise, we all agreed that this decision underscores the importance of our climate-related work and the need to redouble our efforts. 

In a follow up email, Hershkowitz offered a modicum of hope: The EPA can still set vehicle emissions standards — a big deal since that is the biggest source of emissions in the USA (27% vs. 25% from electricity generated by power plants) — and, as the New York Times explains ‘The ruling curtailed but did not eliminate the agency’s ability to regulate the energy sector, and the agency may still use measures like emission controls at individual power plants. But the court ruled out more ambitious approaches, like a cap-and-trade system.’

His summation was subdued but resolute: It’s a terrible decision to be sure, and it will probably make it impossible for us to limit emissions to what science requires. There is no way we’re going to cut emissions by 50 percent by 2030 — and that was true before this decision — but we’re not at zero options by any measure.


Dr. Michael Gerrard, Director, Sabin Center for Climate Change Law at Columbia University

Dr. Gerrard shared his reasons for being somewhat cautiously optimistic: The Supreme Court has prematurely and unjustifiably removed one tool kit to fight climate change. But it’s a large toolkit, and much remains. EPA can still regulate:

  • Greenhouse gas emissions (GHGs) from automobiles (the largest source, just ahead of buildings)
  • Leakage from oil and gas production.
  • New stationary sources like power plants and factories. The decision was basically about coal-fired power plants but EPA can still regulate them in other ways, such as limiting pollutants other than CO2 such as coal ash.

The decision also doesn’t limit the massive buildout of wind, solar and transmission we need, nor does it slow the growth of electric vehicles, nor limit the powers of the states and cities.

One battle is lost (unsurprisingly, given this Court) but the war against climate change very much goes on.

Michael Gerrard (Photo credit: Columbia Law School)

Kevin Trenberth, Distinguished Scholar at the National Center of Atmospheric Research in Boulder, Colorado, and an Honorary Academic in the Department of Physics at the University of Auckland

Trenberth wrote a blistering Op Ed that ran Saturday in Newsrooman online publication from New Zealand. Here are his key points:

  • What we’re seeing is the success of a very well-funded minority with a strong anti-regulatory agenda.
  • The decision is designed to tie the hands of EPA scientists to fight pollution and to protect air, water and our families from the climate crisis.
  • The USA, which is responsible for more carbon dioxide emissions over history than any other country, has made very limited progress in spite of strong attempts by President Joe Biden’s administration. The Republican Party’s control of Congress is a major roadblock.

Kevin Trenberth (Photo credit: Rich Crowder/Corbis)

Dr. Michael Mann, Inaugural Director of the new Center for Science, Sustainability, and the Media at the University of Pennsylvania, Author of The New Climate Wars, EcoAthletes Advisory Board Member

Mann spoke to The New Statesman, a British news outlet after the Supreme Court decsion: The Bush/Trump-appointed right-wing justices who currently control the Supreme Court have already been roundly criticized for promoting the very sort of judicial activism they once railed against.

He linked West Virginia v. EPA to the Court’s overturning of Roe v. Wade a week earlier, which means that a constitutional right to abortion, upheld for nearly a half century, no longer exists. The Court’s ruling against the EPA continues its trend of removing fundamental rights – to privacy, to safety, and now, to a livable planet. 


GSB’s Take

Dr. Gerrard’s ‘the sky is NOT falling’ view is certainly needed at this moment. The forces pushing for real climate action in the United States cannot become paralyzed or defeatist because of the Supreme Court’s decision. That would basically be game over for the climate fight in the United States and would have disastrous ripple effects around the world.

And to be sure, there remains hope that the climate provisions in the Build Back Better bill might still pick up fifty votes in the Senate before the fall and that its tax credits for renewable energy would probably pass Supreme Court muster.

Of course, two seemingly opposite things can be true: While Gerrard’s points are certainly valid, West Virginia v. EPA is a serious blow to the United States’ ability to fully take on the climate crisis at the very time when that effort needs to be dramatically amped up. 

As Kevin Trenberth asserted, “what we’re seeing is the success of a very well-funded minority with a strong anti-regulatory agenda.”

It says here that Trenberth’s key word is minority and that, sadly, the minority rules. 

A solid majority of Americans think the federal government should do more on climate change — roughly two thirds said so in a 2020 Pew poll. But the Supreme Court, by a 6-3 margin, did the bidding of the minority. As it did in the recent Roe v. Wade case overruling a constitutional right to abortion (more than 60 percent support Roe), and in New York State Rifle & Pistol Association v. Bruen, which allows New Yorkers to carry concealed guns (three out of four New Yorkers support gun control). It is especially sad to cite the latter case on the day after the mass shooting in Highland Park, Illinois at a July 4th parade, and the shooting of two policemen in Philadelphia, and…

[Minority Rules: Five of those six conservative judges were appointed by Presidents who lost the popular vote in their election¹. In other words, they were appointed to a lifetime appointment on the highest court in the land by Presidents who won a minority of votes.]

So, the Court throws the CO2 emissions issue back to Congress, where the Democrats control both the House and the Senate.

It should be easy to pass a specific law that will win the Court’s support, right?

Wrong.

The House recently passed a bill with the climate provisions in Biden’s stalled Build Back Better plan but the Senate is now in a 50-50 split, with the Democrats only holding control because Vice President Harris casts tie-breaking votes. And getting to 50-50 depends on the current climate bill means convincing West Virginia Democrat and coal supporter Joe Manchin to vote yes. As detailed in GSB last month, negotiations continue.

Nothing is easy in a 50-50 senate.

[More Minority Rules: The 50 Democratic senators represent 41.5 million more people than the 50 Republicans. How is that possible? Each state has two senators, no matter if it’s California (population ~ 39,000,000) or Wyoming (population ~582,000) and Democrats are mostly concentrated in the most populous states (with the notable exception of Texas)]

Of course one can say that this Minority Rules perspective is a whiny, loser’s lament. After all, while Presidents George W. Bush and Donald Trump got fewer votes in their campaigns versus Al Gore and Hillary Rodham Clinton, respectively, they did win fair and square in the electoral college and that’s how elections are decided in the USA. One can also say that none of the elections that got us a 50-50 split in the senate are contested. That is also true. 

[More Minority Rules: However, when the political system is such that, 1. the solid majority on the Supreme Court consistently rules in ways counter to the wishes of the vast majority of the population, 2. that conservative Court majority is seemingly guaranteed for decades and, 3. it is very difficult for Democrats, who generally support positions with strong majority support (a woman’s right to a safe, legal abortion, and sane gun laws are two others besides climate) to win working margins in the Senate because of its strong structural lean towards the more numerous but less populated states, then a significant portion of the public will have serious legitimacy questions surrounding institutions that have long been seen as pillars of American democracy.

And much of the Republican party, especially the sizable Trumpist wing, believes they are the victims of electoral fraud, that they are the true majority and so their faith in institutions is also kaput.]

So, on climate, at least as it relates to coal-fired power plants, it will be much harder to get real action at scale at the federal level and CO2 emissions will become more difficult to reduce. And, if as expected, the Republicans take control of the House and possibly the Senate in the midterm elections this November, federal climate action will be at a dead end for the foreseeable future…unless you think adding more fossil fuel capacity counts as climate action.


What can and should the sports world do in response to West Virginia v. EPA?

It will need to do an uncomfortable thing — specifically, it will need to step into the political realm on climate.

As it did on the recent overturning of Roe v. Wade. 

NBA Commissioner Adam Silver and WNBA Commissioner Cathy Englebert issued a joint statement that said in part, “The NBA and WNBA believe that women should be able to make their own decisions regarding their health and future, and we believe that future should be protected.”

Many athletes, men and women alike, offered similar sentiments.

The sports world has yet to weigh in on West Virginia v. EPA. 

Now is the time — publicly, clearly and loudly .

Yes, commissioners, athletes and others will get heat for doing so.

But now is the time.

And they might have a surprising ally in this fight — their friends on Wall Street.

Bill McKibben, founder of climate action nonprofits 350.org and Third Act, writing in The New Yorker after the Supreme Court decision, said this:

“Wall Street may be the only actor [other than the Supreme Court and Congress] large enough to actually shift the momentum of our climate system. The pressure on banks, asset managers, and insurance companies will increase precisely because the Court has wrenched shut this other spigot. Convincing banks to stop funding Big Oil is probably not the most efficient way to tackle the climate crisis, but, in a country where democratic political options are effectively closed off, it may be the only path left.”

Banks and insurance companies sponsor sports teams, leagues and athletes. It’s time for the sports troika to let their partners know that…

Now is the time.


¹ Supreme Court justices John Roberts and Samuel Alito were appointed by George W. Bush, who lost the popular vote to Al Gore by more than 500,000 votes in 2000. Donald Trump, who lost the popular vote to Hillary Rodham Clinton by almost 2.9 million votes, appointed Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Clarence Thomas is the only conservative justice currently on the Court who was appointed by a President — George H.W. Bush — who won more popular votes than his opponent, Michael Dukakis.
Photo at Top: The Johnson coal-fired power plant in Glenrock, Wyoming. (Photo credit: AP Photo / J. David Ake)

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