and here to discuss the implications of the ruling.
Michael Pan Fell senior Director and lead counsel of Climate
Risk and Clean Power at the Environmental Defense Fund.
Michael, thank you so much for joining us first. Can you break down this decision
and what exactly this means for the EPA's
ability to fight climate change moving forward?
Yeah. The court decision yesterday was unfortunate.
It uh it constrains GPS authority
to address climate change and it takes some of
the most cost effective tools off the table,
but but what it doesn't do and what in fact upholds and recognizes is E.
P. S.
Authority and indeed responsibility to address climate
change and to address the climate crisis
on behalf of the american public that remains clear and that remains intact.
And this comes at a time obviously when we're getting warnings,
it feels like every day about climate change and whether or not
we take action what the implications mean there can be dire.
How do you think this impacts the effort to combat climate change
here in the US now that this decision has been handed down?
Yeah.
So again,
the opinion it does uphold and respect upholds and respects ups authority
and responsibility to tackle climate change and to address the climate crisis,
which is is apparent it is worsening from wildfires
to more severe and intense weather and climate disasters.
But again, it unfortunately does constrain EPA's authority to do so
and it takes away some of the most effective and
affordable tools tools that the industry themselves rely upon.
And that's why we saw power companies themselves who would be subject to a future E.
P. A. Standard
on the side of the E. P. A.
In this case they stood alongside other major health organizations,
environmental organizations alongside states alongside E.
P. A. And and unfortunately those tools some of those tools are no longer available.
But that doesn't mean we can in fact we must address
the climate crisis in accordance with what science tells us.
Yeah.
Something that has struck me about what you've said is that
this decision takes away effective and affordable tools from the E.
P. A. Can you break down a little bit more what exactly that means?
Yeah. So so what the opinion does is it focuses in particular upon a particular part
of a law, a particular part of a program design. And what it says is that way to design.
That flexibility of design is something that E. P. A. Can no longer use.
And it's that flexibility that power companies
themselves were able to use to access those
most affordable those most effective tools.
But again that doesn't mean and in fact it means quite the opposite E. P. A.
Needs to continue to take urgent action.
It does mean the federal government needs to take urgent action.
In fact Congress has in front of it right now. Clean energy incentives.
It needs to act with urgency on those as well.
Yeah.
How does it make fighting climate change less efficient and also um put more of
the onus on Congress here essentially making things
more expensive and difficult down the line.
Yeah. So so the particular part of of the program design that the opinion found
using kind of elevating an interpretive framework
um that provides a pretty unusual ability to look
under the hood of what an agency can do.
Um
was really around a flexibility of design
and it's that flexibility the ability for the power company
to use and choose among the most efficient tools.
It's that that's been limited.
It's that that's been constrained and so when
you limit and you can strain that flexibility
that does take away that does remove sort of some of the most cost effective tools.
So it seems like the theme of this week
as we're getting these final decisions from the Supreme Court
is what precedent means.
And also looking at other areas where things might change because
of these decisions meant for very specific cases in this case.
The big question that kind of jumps out at me is what an agency can do here.
So I'm wondering how you think this ruling impacts the power of other
government agencies that also fall under the executive branch like the E.
P. A.
Yeah.
So the case itself was decided on the
basis of a framework that's that's been used with
exceeding its exceedingly sparingly used. And
it's one that again looks under the hood of what an agency has done.
It looks under the hood of an agency approach and that's that's quite unusual.
Um And I do think that involves an expansion there,
but but it's one where I think
we'll see in large part potential litigants themselves
try to connect even remotely connected actions and and why wouldn't they write?
And this will unfortunately cause disruptions will cause uncertainty.
But the opinion itself right, is really constrained.
It's really specific, it's it's narrow, not just the E. P. A.
It's not just a particular section of law, but again,
it's narrow to a question around a particular program design.
And so if you read the opinion and and and
and take a look exactly how they're describing this framework,
they're doing so in language that reserves
it really for extraordinary circumstances and and the
majority apparently thought here this very specific
set of facts before it applied there.
What do you think this means for
agencies like the FDA, like the CDC and others?
Yeah. I think that um the opinion itself, right, is again really narrow.
But I think we will see potential litigants and litigants broadly right?
Not litigants in front of just the E. P. A.
Try to connect and use the legal theory that's
been sort of based upon sort of the opinion,
the majority opinion that's been almost elevated
because that's not specific to the E.
P. A. Right.
And so I think what we'll see in large part
is disruption and uncertainty in relationship to those potential litigations
in relationship to bringing that litigation.
So, moving forward now, obviously you don't have a crystal ball in front of you.
But I have to ask, given your background, what are you anticipating?
We see in the dynamic between the E. P. A.
And Congress and under the biden administration.
Yeah, but it's important to note that despite the fact that the court ruled here,
there was no standard in effect.
Right?
So,
so there was in in in large part of
ruling in a hypothetical case and a hypothetical standard.
What we see, however, is an outcome where E. P.
Is authority, although constrained remains intact. And so what E. P.
A needs to do,
what Congress needs to do with the federal government needs to do
with the Bad Administration needs to do is act with urgency.
And again, Congress has in front of it right now,
clean energy incentives and acting on those with urgency is imperative.
I do also want to ask you because you mentioned that there was no standard in effect.
This was a hypothetical ruling.
Um obviously this is a final word from the Supreme Court,
but could we see potentially um some sort of
recourse or anything that um environmental advocates do here
in order to potentially push back against this,
What do you think that would look like
the opinion itself?
Right, is really specific
um to not again, only E. P.
A in this particular part of the law, but to this particular program design
and what that means again,
is that the opinion upholds and respects
EPA's authority and responsibility more broadly.
And so what environmental groups,
what organizations more broadly will be supporting his urgent action?
This does not mean E. P. A. Cannot. In fact, it's quite the opposite. I. E.
Pay must act with urgency.
And on that note, if there are environmental advocates watching now,
how does this potentially change commitments?
Is there anything that people can be doing
right now to better hold government agencies accountable
for maintaining a lot of these priorities as
it relates to climate change and our environment?
Um the climate crisis is here. It is it is worsening.
And so what this means is although we have seen an E. P.
Authority that has been constrained and some of
those most affordable tools no longer available,
it doesn't mean the E.
P. A. It doesn't mean that Congress doesn't mean that the federal government
doesn't need to do anything other than act with urgency
and really and truly in accordance with what science Texans.
And so any advocate any individual able to
support that process of ensuring that we confront the
climate crisis in accordance with what science tells us
is the key is the crucial action here.
All right,
Michael Pan fill senior Director and lead Counsel of Climate
Risk and Clean Power at the Environmental Defense Fund.
Thank you so much for joining us and giving us that perspective this morning.