Let’s meet this setback with resolve: Reflections on the SCOTUS EPA decision

Note from RLF President Avi Garbow to staff and board after the Supreme Court’s EPA ruling on June 30, 2022.

Yesterday, the United States Supreme Court issued an opinion in West Virginia v. EPA, and by a 6-3 vote, severely restricted EPA’s authority under the federal Clean Air Act to control emissions from coal-fired power plants, the largest-emitting stationary sources fueling our climate crisis. This ruling deals a blow to federal efforts to address a worsening crisis that affects us all, with broad ramifications for generations to come. The lengthy opinion rests upon the majority’s view that the EPA’s exercise of authority through its 2015 Clean Power Plan is of such magnitude and consequence that it falls into the “major questions doctrine” of jurisprudence and is disallowed, absent clear Congressional authorization. Newspapers and websites are replete with summaries of the decision. While I am happy to discuss with anyone who is interested the details of the Court’s reasoning, however flawed it is in my opinion, I want to offer some reflections—some personal, and many that impact our work together.

In the summer of 2013, President Obama stood before a crowd of students at Georgetown University and delivered a speech that set in motion the country’s first—however belated—major climate action plan at the federal level. He said, “I refuse to condemn your generation and future generations to a planet that is beyond fixing.” Soon thereafter, I was confirmed by the Senate as EPA’s General Counsel, and we began the work that would become, two years later, the Clean Power Plan. Though it had its critics on all sides, it was widely heralded as the most ambitious federal climate regulation to date, using existing Clean Air Act authority to move our country towards zero- and low-emitting sources of electricity.

On August 3, 2015, I joined then-Administrator Gina McCarthy in the East Room of the White House where President Obama formally announced the promulgation of the Clean Power Plan. The gravity of the moment was apparent throughout the event, as the President reminded us that there is no Planet B. Immediately after the Clean Power Plan was announced, fossil-fuel aligned parties sued EPA and I helped lead the defense of the Administration’s signal climate action. In February 2016, the Supreme Court stayed the implementation of the Clean Power Plant on a 5-4 vote—the first time in history that it issued a stay of a regulation before any review by a federal appeals court. I remember vividly getting that stunning news as I sat alongside Administrator McCarthy dealing with another crisis developing in Flint, Michigan. As an aside, Justice Scalia passed away just four days later—he had been the deciding vote in the Court’s historic stay decision days earlier. One month later, President Obama would nominate judge Merrick Garland to be an Associate Justice of the Supreme Court, which also meant that during the pendency of Garland’s nomination he took himself off of the D.C. Circuit panel then reviewing the Clean Power Plan.

When the Trump Administration came to power, they immediately scrapped EPA’s Clean Power Plan, and put into place a coal-friendly and climate-disastrous regulation breathing new life into the very power plants fouling low-income communities and worsening our climate crisis. Fast forward to January 19, 2021, the last day of the Trump Administration, when the D.C. Circuit vacated the Trump Administration’s rule that had taken the place of the Clean Power Plan and remanded the entire matter to EPA for further consideration. President Biden was inaugurated a day later, and a day after that the White House brought me back to EPA in a temporary leadership role to help the new Administration return EPA to its mission of protecting health and the environment, including addressing our climate crisis.

Yesterday’s Supreme Court ruling deals a severe blow to the Biden Administration’s efforts to address our climate crisis. There is still much that the federal government can and will do, and I am certain that folks throughout the Administration are continuing to look at every vehicle for achieving rapid and significant GHG emissions reductions throughout our economy, and globally. But there is no sugar-coating this opinion—it is a setback.

What does that mean for Resources Legacy Fund, and for our partners and grantees with whom we work to make our communities and planet safe and healthy? It means that we must work with greater urgency, with even more commitment, and find more and better ways of addressing our climate crisis—community by community, on our coasts and in wildlands, in our cities and rural towns, and always through the lens of equity and diversity because that makes our achievements more durable.

We must remember that the Supreme Court’s ruling does not curtail the ability of states to take vital actions to address climate change. Our work in Sacramento and throughout California has taken on even more urgency, as has our work in other states. Our fiscally sponsored projects, so many of which are on the frontlines of fighting for climate justice, must continue to find ways of galvanizing support for much-needed change. Our work to promote Indigenous leadership in conservation must also accentuate the opportunities for climate leadership.

All of this can only be done when philanthropic support is effectively pooled and channeled into projects and programs—and with people—where gaps exist. And it can best be done when supported by strong legal acumen, deft policy chops, a keen understanding of governmental decision-making, and with authentic connections to, and support of, effective grassroots organizations, old and new. RLF, and its affiliated entities, Fund for a Better Future and Shared Ascent Fund, have an exceptional capacity to influence and effect positive change. Every one of you has played a role in our success so far, and I hope that each of you stand strong in the face of adversity as together we continue our work. Our response to yesterday’s Supreme Court climate decision must be one of resolve—to do more where it is needed most. That is why we exist.