After West Virginia v. EPA, Four Ways States Can Fight for Our Clean Energy Future
By Sonum Nerurkar and Deborah Behles
Photo Credit: Ian Hutchinson/Unsplash
While the recent decision in West Virginia v. EPA, which limited the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas (GHGs) emissions, may feel like a setback, states and localities can still play a major role in reducing greenhouse gases and harmful pollution.
What Happened In The West Virginia v. EPA Case?
On June 30, 2022, the Supreme Court released its decision in West Virginia v. EPA. The decision agreed with West Virginia’s argument that EPA overstepped its authority, granted by Congress through the Clean Air Act, in EPA’s 2015 Clean Power Plan rule.
The Court found that EPA’s requirement to shift coal generation to gas or renewable energy created major economic implications without clear Congressional intent, thus violating what the Court called the “major questions'' doctrine. It is unclear whether this novel doctrine will be used to challenge other agency decisions that arguably have "significant" economic or political impact without a specific legislative statement.
While the decision limits how EPA regulates power plants’ GHG emissions, EPA can still regulate power plants, including other power plant emissions like mercury and nitrogen oxides (NOx). EPA can also take stronger enforcement actions to require power plants and facilities to meet pollution control requirements, as well as coal ash requirements that protect water and land. These actions can lead to a shift to cleaner energy, which is often more economical than retrofitting old polluting facilities.
And while the EPA is limited in how it moves forward, states, regions, and localities are not. This decision does not directly impact how state and local initiatives limit GHGs, reduce pollution, and transition to clean energy.
Four Ways States Can Accelerate Action For A Clean and Equitable Energy Future
1. Enforcing renewables and GHG emission requirements in state policy
States can pass stronger standards that require investments in renewable energy and limit GHGs and air pollutants. Currently, 31 states and the District of Columbia have either passed a renewable portfolio standard (RPS) or a clean energy standard (CES), requiring that a certain portion of their electricity come from renewable resources or carbon-free technologies. Of those 31 states, 20 have committed to 100% clean energy by 2050.
For example, New York’s Climate Leadership and Community Protection Act (CLCP) requires an 85% reduction in GHG emissions in all sectors of New York’s economy by 2030. In 2021, Illinois, an Equity Fund target state, signed into law the Climate and Equitable Jobs Act, aiming for 100% clean energy by 2050. This includes prioritizing the retirement of coal and gas plants in environmental justice communities. And in North Carolina, another Equity Fund target state, bipartisan legislation was passed to reduce carbon emissions from the state’s electricity production by 70% by 2030.
Clear standards such as these examples are critical for moving states toward cleaner energy.
2. Ensure that frontline communities are prioritized in state environmental policy, codifying how “disadvantaged communities” are identified and supported in legislation
The transition to clean energy thus far has not been equitably distributed across the country. When there is backtracking on environmental policy, policymakers often look to “middle of the road” policy solutions that may reduce overall emissions, but maintain pollution – and in some cases increase pollution – in disadvantaged communities.
Codifying “disadvantaged communities” in legislation can help institutionalize equity as a priority, particularly in light of constantly shifting political landscapes. State agencies have been successful when they create community-driven mechanisms to define “disadvantaged communities,” ensuring that impacted communities are prioritized in the process, policies, and implementation.
“Maryland recently passed their Climate Solutions Now Act of 2022 with strong environmental justice language, in large part thanks to the organizing and leadership of Equity Fund grantees.”
Many states have created government advisory councils and entities responsible for maintaining a comprehensive and equitable definition. For example, Maryland recently passed their Climate Solutions Now Act of 2022 with strong environmental justice language, in large part thanks to the organizing and leadership of Equity Fund grantees. The law importantly considers the “cumulative impacts” of air, water, and land use pollution in their definition of “overburdened and underserved communities” as well as income and language limitations.
3. Block harmful “clean” technologies
Given the Supreme Court’s decision that EPA should not look at generation shifting approaches, EPA may pursue pollution control options that depend on false, harmful technologies, like carbon capture storage (CCS), biogas, incineration, or blue hydrogen. These technologies actually increase air pollution in already overburdened communities. And though these technologies claim to support a “net zero” emissions reduction goal, they can still contribute significantly to climate pollution.
Steps can be taken at local and state levels to reduce communities’ exposure to these harmful types of technologies. For example, in June 2022, the City of New Orleans passed a resolution that banned carbon capture and storage technology, citing concerns over the risks and harms it poses to predominantly Black communities. In New Mexico, advocates successfully blocked a high-profile hydrogen energy bill numerous times.
Given the increase in federal incentives to build hydrogen hubs or use CCS technologies, local efforts to focus on truly renewable and clean sources of energy will be all the more important.
4. Increase incentives for renewable energy in state and local policy, with a focus on equity
Given the federal landscape, state and local government action to incentivize renewable energy, such as wind and solar, will make all the difference in the climate reality we will face in a few decades.
In California, they have launched the SOMAH (Solar On Multifamily Affordable Housing) program, which provides financial incentives for installing solar PV units on multi-family homes.
Other states like Colorado, New York, and Oregon have passed low-income provisions in broader community solar policies. Washington, D.C. created a program that allows income-qualified residents, both renters and homeowners, to install solar PV installations for no cost.
“While we are hopeful for federal action on climate change, it remains clear that building grassroots power in the states will continue to be critical to win big on climate change and equity in this new landscape.”
The good news is that these are just some ways for states and regions to fight for our clean energy future in light of the West Virginia v. EPA decision. While we are hopeful for federal action on climate change, it remains clear that building grassroots power in the states will continue to be critical to win big on climate change and equity in this new landscape.
Sonum Nerurkar is the federal strategist at the Equity Fund. Deborah Behles is a policy consultant to the Equity Fund.
