Mark Trahant*

Republished with Authors permission from Indian Country Today, June 20, 2022,

The Supreme Court said Thursday the Environmental Protection Agency does not have the authority to regulate greenhouse gas emissions without specific authority from Congress. The decision raises new questions about the power of government in the age of climate change.

The vote was 6 to 3 with conservatives in the majority.

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Chief Justice John Roberts wrote in his opinion for the court.

But Roberts wrote that the Clean Air Act doesn’t give EPA the authority to do so and that Congress must speak clearly on this subject.

The Chief Justice called this decision “a major questions case.” That is the notion that federal agencies cannot answer questions of “vast economic or political significance” without specific legislation from Congress. In this case Congress enacted the Clean Air Act but that law does not include the EPA’s regulations.

In the Obama administration the EPA set out rules that would have promoted a generational shift away from coal-fired power plants to fuel sources, such as natural gas, that have less impact on climate change.

“EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself, the court held.

“It is EPA (that’s the Environment Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time,” wrote Associate Justice Elena Kagan in the dissent. She said the “how” of generation shifting creates no mismatch with the EPA’s expertise.

Janene Yazzie, Southwest regional director for NDN Collective, said a lot of tribes have modeled their own regulations on EPA regulations. This will be confusing and it could lead to tribes attempting to increase coal production. “I imagine particularly when we do have leadership, that seems very indecisive about the direction they want to take regarding the future of coal and coal development on our nations, that such a ruling would also lead to tribes, replicating that when they're trying to salvage what's left of their coal economy.”

She said the challenge for environmentalists is to fight harder.

“We're at a time where the entire globe agrees that there is no future for coal,” she said. “That is not economical, that is not healthy, that it is not going to contribute to a viable future for our planet.”

She said tribes will be at a junction point. ”They could either be the last line of defense in protecting our communities and responding and adequate and effective ways to mitigate and adapt to the impacts of climate change and face climate reality. Or they could allow this to be another devastating blow to the future of our children and the future of our peoples.”

Last week Navajo Nation President Jonathan Nez told ICT that coal will be around for a long time and that there is still a market for coal. He said other nations, like China, are still burning coal. "You know, if there's a way that we can transport it, maybe south into Mexico, and out those are opportunities that, of course we're, we're looking at."

There are several interesting twists to this case.

First, the court did not need to weigh in. The regulations that offended the coal industry, and states with large coal economies, had been withdrawn. There was no pending issue for the court to decide. Still, Roberts wrote: “There is little question that the petitioner States are injured, since the rule requires them to more stringently regulate power plant emissions within their borders.”

The court’s majority wanted to take on this issue and limit the power of government.

The second issue is broader. This decision comes at a moment when markets, not the government, is ending coal as a viable energy source. Just last week the Idaho Power Company said it was ending the purchase of any coal sourced energy six years ahead of schedule. More utilities have strategic plans to end their use of coal as soon as possible. (The impact of coal on the climate is two and one-half times greater than other fossil fuels.) The Bank of Japan announced recently it would no longer finance any coal-related investment.

“Even China is like having a serious self-reflection moment right now in terms of what their coal industry means, and they are heavily dependent upon it, but they're still also facing that reality that they're gonna have to shift,” Yazzie said. “It’s more economical to not build more coal-fired power plants in that they really do need to invest in the transition to cleaner and more renewable energy.”

Conservatives on the court have been challenging the power of government at a variety of levels, ranging from the response by the Centers for Disease Control in the pandemic, to this clean air regulation.

The Biden administration has set a goal of reducing greenhouse gas emissions by half before the end of the decade and to have net zero emission standards by 2035. Coal-fired power plants represent a little more than a third of all electricity and about the same amount of greenhouse gas emissions.

The United Nations has said there is no way for the planet to reach greenhouse gas emission goals without retiring coal as an energy source.

There was immediate reaction from climate-related activists across the country.

"Climate chaos and the devastation of its impact are here. Indigenous knowledge and leadership are key to addressing the climate crisis," said a statement from the Ikiya Collective, a frontline-led group of femme, queer, two-spirit Black, Indigenous, and people of the global majority organizing in Oklahoma, Texas, and New Mexico.

"Yesterday, SCOTUS delivered a blow to our tribal sovereignty. last week it was bodily sovereignty and our Miranda rights. We know violence to our land, air and water results in violence to our body," the collective said. "Climate change and bodily sovereignty are directly related. Voting and party lines will not get us out of the mess white supremacy and capitalism has created. Fossil fuel pollution and the denial of bodily sovereignty create disproportionate harm on Black, Indigenous, low income and communities of the global majority. The unjust political and corporate greed seeking to block reproductive justice and climate justice are one in the same evil. We will not sit idly by."

“The MAGA Court took a sledge hammer to EPA’s most important tool to deal with one of our biggest sources of climate pollution. It’s more important than ever for Congress to take bold and immediate climate action to reduce our dangerous and costly dependence on fossil fuels. Climate disasters are already ravaging our country, and this is our last, best chance to avert catastrophe. Transitioning to clean energy will cut household energy bills and prices at the pump for families feeling the pain of inflation," said Lori Lodes, executive director of Climate Power. “Despite today’s dangerous and deeply disturbing decision, there is still room for the EPA to exercise its authority – and duty – to cut climate pollution. The Biden Administration should act quickly and issue the strongest rule possible."

*Mark Trahant, Shoshone-Bannock, is editor-at-large for Indian Country Today. On Twitter: @TrahantReports Trahant is based in Phoenix.