The hearing focused on the ability of the (federal) Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from coal-fired power plants, which produce almost 20% of electricity in United States.

This mission is "exactly within the purview" of the agency, said progressive judge Sonia Sotomayor.

But several conservative judges appeared skeptical.

Arguing for a coal mining company, lawyer Jacob Roth felt that the prerogatives of the EPA went too far.

"The agency asks questions like: do we need to get out of the coal industry? Do we need to build more solar panels in the country? (...) These are not questions for any agency to to respond."

In 2007, the Supreme Court had decided, by a narrow majority, that the EPA was competent to regulate the emissions of gases responsible for global warming, in the same way that it is charged by a law of the 1960s with limiting the pollution of the air.

But since then, former Republican President Donald Trump, a climate skeptic hostile to any binding measure for the industry, has brought three magistrates into the temple of American law, cementing his conservative majority (six judges out of nine).

The hearing took place, coincidentally, on the day of the publication of a new report by UN climate experts, making a clear statement on the catastrophic impacts of climate change.

Restrict Authority

Concretely, the file finds its source in an ambitious plan adopted in 2015 by Barack Obama to reduce CO2 emissions.

This “Clean Power Plan”, whose implementation fell to the EPA, had been blocked before coming into force.

In 2019, Donald Trump published his own "Affordable Clean Energy Rule", limiting the EPA's scope of action within each site, without allowing it to remodel the entire network.

A federal court having invalidated this version, several conservative states and the coal industry asked the Supreme Court to intervene and clarify the powers of the EPA.

The Supreme Court of the United States, February 25, 2022 in Washington MANDEL NGAN AFP / Archives

According to Elizabeth Prelogar, who was defending the administration of Joe Biden on Monday, the judges should wait for the publication of new rules from the EPA, expected before the end of the year.

Joe Biden has indeed made it known that he does not intend to resurrect Barack Obama's plan, and his administration had asked the High Court to declare the file obsolete.

The conservative States and the industrialists thus seek in reality to “restrict the authority of the EPA in the regulations to come”, estimated Elizabeth Prelogar.

"Resentment"

On Monday, the conservative majority of the High Court "seemed interested in the possibility of sending a message (...), by preventing government agencies from adopting regulations having broad economic and political repercussions", judged Robert Percival , professor of environmental law at the University of Maryland.

In an argument sent ahead of the hearing, West Virginia, which is bringing the action, criticized the EPA for behaving like “the central energy planning authority”.

It "robs the states of their traditional authority, without a clear sign of Congressional approval," she wrote.

Before the hearing, Richard Lazarus, professor of environmental law at Harvard University, had considered that there were “good reasons” to think that the Court followed this reasoning, and said “that Congress has not not have the right to delegate its regulatory power (...) or only by using very precise language".

Given the paralysis of Congress, where a huge social and environmental spending project led by Joe Biden has just failed, "such a shutdown would threaten the government's ability to respond to the most pressing problems, and not just global warming" , he pointed out.

A train carrying coal passes the Adamsville coal-fired power plant on April 11, 2022 in Alabama ANDREW CABALLERO-REYNOLDS AFP/Archives

To avoid this scenario, several environmental defenders had written to the Court.

“Without efforts to reduce greenhouse gases, temperatures could rise by as much as 5.6 degrees,” climatologists reminded him.

And minimizing the impact of climate change "requires coordination at the federal level".

Left-wing elected officials, including Senator Bernie Sanders, have been more offensive.

For them, the progress made in the 20th century in terms of increasing the length of life was made possible by administrative agencies which "curbed the excesses of industry".

According to them, this file "is the product of resentment" of the industry.

© 2022 AFP