The U.S. Supreme Court’s decision blocking the Environmental Protection Agency (EPA) from regulating greenhouse gas emissions at the nation’s power plants will make it harder for the U.S. to hit its carbon reduction goals, but it doesn’t pose any immediate challenges for the building industry, legal and policy experts say.
The court’s 6-3 ruling, announced on the last day of the court’s term, June 30, was a rebuke to the EPA for overstepping its authority under the Clean Air Act, and a victory for the coal industry. Congress, the court said, had not given the agency the authority to make the far-reaching changes in the power-generating industry that it wanted.
Coal country cheered while only three justices on the court appeared concerned with the looming disaster of climate change caused by carbon emissions. While the EPA will have to look for other ways to regulate the power industry, a variety of energy regulations and policies that affect residential builders directly are untouched by the ruling. Building and energy codes, renewable portfolio standards, and tighter standards for refrigerants and blowing agents used in certain types of insulation all remain unscathed—at least for now.
How, and even whether, the decision has a ripple effect for builders in the future isn’t clear.
In the wake of the decision, GBA contacted a variety of legal and policy experts to ask whether the ruling in West Virginia vs. EPA will scuttle efforts to require more energy-efficient buildings, reduce emissions from a variety of building materials, or require utilities to provide minimum levels of renewable power in their energy mix.
Typical of the replies was this email from Patrick Parenteau, a professor at the Vermont Law School and the author of this analysis posted recently at The Conversation, a website.
“I don’t think the [West Virginia] decision will have any direct impact on building codes or renewable portfolio standards adopted by states and municipalities,” he said. “It deals specifically with agency interpretations of federal statutes. Chief Justice Roberts’s opinion says it is a narrow ruling that EPA lacks authority to use ‘generation shifting’ as a tool to reduce carbon emissions from power plants.”
Parenteau continued, “The troublesome aspect is the use of the so-called ‘major questions doctrine,’ which is a dramatic change in the way the court reviews agency regulations. Depending on how far the court goes with this it could have implications for a wide variety of energy and environmental regulations including rules adopted by FERC and DOE that could limit policies to promote efficiency and the shift to renewables. Too soon to know exactly how this will play out.”
David Doniger of the Natural Resources Defense Council, who with Lissa Lynch wrote this analysis at the NRDC blog, said the spill0ver effect of the court’s ruling into areas affecting buildings and energy policy isn’t clear yet. “We think it is too early to speculate on these questions,” he said in an email.
The ruling dealt with policy set by a federal agency. Building and energy codes have a direct impact on what builders do. But the International Code Council, which publishes the so-called I-codes, is not a governmental body and its codes are adopted voluntarily on a state-by-state basis. There is no national building code. Likewise, states are free to adopt their own renewable portfolio standards, which require electricity providers to offer a minimum share of renewables to their customers. There is no national RPS.
The building industry is directly affected by government regulations on such things as refrigerants used in heating and cooling equipment and as blowing agents in several types of insulation, as well as lead, volatile organic compounds, asbestos and other materials that are considered hazardous. Would the Supreme Court ruling have any bearing on those kinds of regulations? Probably not, experts say, because those compounds are recognized as materials legitimately regulated under existing law, or have been the subject of past litigation that’s already been settled.
Attention will turn to states
Lesley Jantarasami, an EPA veteran who helped develop national greenhouse gas regulations and is now managing director of the energy program at the Bipartisan Policy Center in Washington, said the court’s ruling will put more pressure on states to cut greenhouse gas emissions.
“It does make it harder for those who want to push for 100% clean electricity,” she said in a telephone call. “The impetus is now going to be on state governments for pushing more aggressive policies for 100% clean electricity . . . The onus is now on people and states and regions that want to look for a faster time frame for decarbonizing electricity generation. They’re going to have to do things like update their portfolio standards.”
Now that the Obama-era Clean Power Plan is out the window, she said, the EPA will have to go back to the drawing board and issue a new proposal for reducing power plant emissions and go through the rule-making process all over again. That in itself will take a year or more, and the result could end right back in court.
“Who knows how long it will be stuck in the courts,” she said. “I do think that people aren’t really thinking that robust emissions reductions are going to come from EPA’s new rule-making. It’s going to be driven more by market forces. Coal-fired generation is much more expensive compared to wind and solar on a levelized cost basis, so we’re seeing market forces in general leading to the retirement of coal-fired generation faster than even the original Clean Power Plan that this whole case was about. For the building sector, it’s mostly an indirect impact and will continue to be something that motivates states to step up where the federal government has so far been lacking in leadership.”
Scott Gibson is a contributing writer at GBA and Fine Homebuilding magazine.
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I just read this in The Atlantic: "With record heat in Texas that is testing the state’s power grid, a California wildfire that has threatened an ancient grove of sequoias considered a foundation stone of the national-park system, and persistent drought across the West that is forcing unprecedented cutbacks in water deliveries from the Colorado River, the summer of 2022 already is shaping up as another season of extreme and dangerous environmental conditions.
"The paradox is that precisely as these events are dramatizing the rising costs of inaction on climate change, Washington faces more difficulty in taking action. That’s not only because of the Supreme Court but also because of the resistance to sweeping legislation in the Senate from every Republican as well as Democratic Senator Joe Manchin, who represents one of the top coal-producing states, West Virginia. Adding to the strain: The states most integrated into the existing fossil-fuel economy—almost all of them controlled by Republicans—are escalating their efforts to block action on climate change from the federal government and even the private sector."
Regardless of one's predisposition on the two political parties it's hard to deny the facts of the accelerating change in the climate. Yes, GBA is supposed to be about building and construction. However, the recent rulings by the Supreme Court and the implication for their future rulings have the potential to neutralize any gains we make in carbon neutral construction. That is the point of the urgency of thinking about the recent rulings. One can stick one's head in the sand and stick to a narrow reading of the effect of the ruling. One can also understand that we have a major part of our government that is unelected that is on the side of corporate fossil fuel interests, does not recognize basic science, and is actively trying to thwart and cancel any carbon neutrality gains we might make in building and construction. If that doesn't upset readers of GBA I have to ask: Do you have a pulse?
You really have to dig deep into these bills because it's the details which matter and I can almost guarantee you that there's some grade A pork in this bill.
Remember SCOTUS is just trying to what it sees as a grave error with regards to the delegation of powers from the Legislative to the Executive. Congress legislates and the Executive administers the law specified by Congress. The Executive doesn't go outside the bounds of that legislation although Congress for decades has approved of it because it gives them deniability and secures ones seat in power.
As far as climate change is concerned. Time to adapt and overcome or simply not worry about it. I don't worry about it and I have a BS in Enviro Science/Public Policy.
See Eric Anderson's comment, comment 6, here: https://www.greenbuildingadvisor.com/question/uh-oh
I think it dispenses with your argument very effectively.
Anderson doesn't get it because he doesn't appreciate how the federal govt is supposed to work. Congress doesn't need to be an expert in anything, they just need to be specific with their legislation. This is why Congress has hearings prior to crafting legislation. Regulatory bodies of the executive have for too long taken liberties and expanded their reach outside the intent/scope of the laws they're tasked with administering.
Ultimately Anderson's argument is about convenience. Convenience was not on the minds of the founders when they drafted the formation of the new federal govt.
No, it's not about convenience in any way. The founders of the constitution had no way of knowing the details of how our knowledge of science and technology would change over time. To take a literal interpretation of what's in the constitution about environmental issues and then use it to make interpretations of what we should do today is a crock. It's a case of cherry picking what you want and what you don't want.
It's simply impossible to make the constitution reflect every change in information about science and technology that we've seen since it was written. Congress is also in no position to substitute for that absence of knowledge on scientific and technical issues. To make an originalist interpretation on these technical issues is just an effort to subjugate law to whatever party the majority in the Supreme Court wants to win. It's clear the Supreme Court has picked sides with the fossil fuel corporate interests. Their latest rulings don't support any overarching principles of jurisprudence.
[No, it's not about convenience in any way. The founders of the constitution had no way of knowing the details of how our knowledge of science and technology would change over time. To take a literal interpretation of what's in the constitution about environmental issues and then use it to make interpretations of what we should do today is a crock. It's a case of cherry picking what you want and what you don't want.]
As I said Congress relies on experts all the time when they craft legislation. The SCOTUS ruling just says that the EPA must work within the narrow bounds of the legislation. The solution is to expand the boundaries of the legislation.
[It's simply impossible to make the constitution reflect every change in information about science and technology that we've seen since it was written. Congress is also in no position to substitute for that absence of knowledge on scientific and technical issues. To make an originalist interpretation on these technical issues is just an effort to subjugate law to whatever party the majority in the Supreme Court wants to win. It's clear the Supreme Court has picked sides with the fossil fuel corporate interests. Their latest rulings don't support any overarching principles of jurisprudence.]
It's not impossible it's just not easy but it was never meant to be easy. That's the point.
"simply not worry about it"?
I understand the temptation to do exactly that, especially if you are older and don't have kids. But "simply not worrying about it" is exactly what has landed us in the pot of hot water that's only getting hotter. If we don't worry about it soon, it will be too late.
Too late for who? Unless you want to wipe out half the worlds population there's no such thing as "too late".
GBA needs to remain neutral — this is not a political forum. Stop the BS.
A central theme of GBA is about conserving energy/reducing carbon emissions due to concern over climate change. It would be great if this were not a political issue but that is where we are as a society so how can we ignore the elephant in the room?
Human caused climate change has become one of the primary defining issues of the two political parties; with Democrats claiming that it is the greatest existential threat and the GOP taking the position that it is vastly overblown. This results in stark regulatory differences- with most of the Democratic Party calling for widespread reduction of carbon emissions and the Republican Party calling for a rollback of existing regulations and no new regulations.
The three Supreme Court justices appointed by Trump that form the base of this Supreme Court were hand picked by the Federalist Society and Conservative GOP Donors to, among other things, unwind the Democrat led regulatory state, and resist further climate related regulatory action. This is just the first step....
John Clark stated above: "As far as climate change is concerned. Time to adapt and overcome or simply not worry about it. I don't worry about it and I have a BS in Enviro Science/Public Policy."
I work with villages in Central Africa, including Kenya. The droughts are getting worse -almost certainly exacerbated by human induced climate change primarily from the US and other developed nations. Recent locust swarms have also been the worst in 70 years. Our supplemental food programs are now being taxed to the max when imported food supplies are skyrocketing in price...
Please tell me how I should I break it to my clients in Kenya-especially mothers of young children- that they should not worry about it.???
As I said, adapt and overcome OR don't worry about it. Those are your choices.
The problem with Africa is the paternalistic attitude of The West which has kept the continent in perpetual poverty since colonial times.
You can't blame the US. That's just BS, but what you can blame is an increase in the number of human beings who want to buy goods/provide services and heat/cool their dwellings.
Even though the US emits far CO2e more per capita than anyone else on earth, and a significant portion of the emissions of other countries is to make goods for our consumption?
[Even though the US emits far CO2e more per capita than anyone else on earth]
That's factually incorrect. The US doesn't crack the Top 15, but you know who does? Canada at 7th. Australia at 11th.
In any case the US is a large country which experiences extremes in both heating and cooling and agriculture. Frankly the US is lucky that the most populated state is also located in the driest and most temperate region.
[ a significant portion of the emissions of other countries is to make goods for our consumption?]
True but this applies almost all large economies (ex, EU). It's called trade and if you really want to get into the weeds you should measure the energy inputs of both imports and exports. The US exports a lot of mechanized agricultural products to China.
Fair enough; I should have checked instead of going off memory. The comparison is usually US emissions vs China and India, where the US does not fare favorably.
However: "The world’s largest per capita CO2 emitters are the major oil producing countries; this is particularly true for those with relatively low population size. Most are in the Middle East: In 2017 Qatar had the highest emissions at 49 tonnes (t) per person, followed by Trinidad and Tobago (30t); Kuwait (25t); United Arab Emirates (25t); Brunei (24t); Bahrain (23t) and Saudi Arabia (19t).
However, many of the major oil producers have a relatively small population meaning their total annual emissions are low. More populous countries with some of the highest per capita emissions – and therefore high total emissions – are the United States, Australia, and Canada. Australia has an average per capita footprint of 17 tonnes, followed by the US at 16.2 tonnes, and Canada at 15.6 tonnes.
This is more than 3 times higher than the global average, which in 2017 was 4.8 tonnes per person."
You can make all of the excuses you want--"but everyone else is doing it too" wasn't an acceptable answer to my parents when I was a kid, and it's not an acceptable answer for where we are today.
And by the way, your reference is outdated; the one I shared is more recent and the results are slightly different: https://ourworldindata.org/co2-dataset-sources.
I choose to adapt and overcome....but that now must include (regrettably) political action. I am 65 years old and never before have I been involved politically. I didn't trust politicians. But it is now woefully apparent that climate change is an existential threat and the primary obstacle to solving this crises is the Republican Party. Thus for the first time in my life I am diverting time and money from my charitable work and projects reducing my carbon emissions to supporting political campaigns. It pains me to have to do it but I see no other choice. Win or lose, I can't face my grandkids or my African clients and say I did nothing.
As for your statements about Africa, the West has never had a "paternalistic" attitude...unless by that you mean an abusive parent. Western nations and individuals have raped and pillaged Africa for 700 years, including resource extraction, the slave trade, contorting natural borders and forced conversions to "Christianity". It is remarkable how each Western nation seemed to try to outdo the other's cruelty. For instance, where I work in Central Africa, King Leopold of Belgium was the main perpetrator-he is renowned to this day for his cruelty...But the African people are far more resilient and resourceful than we give them credit for. They will emerge in the 21st Century as a leading engine of growth and innovation.
[ "paternalistic" attitude...unless by that you mean an abusive parent. Western nations and individuals have raped and pillaged Africa for 700 years, including resource extraction, the slave trade, contorting natural borders and forced conversions to "Christianity". It is remarkable how each Western nation seemed to try to outdo the other's cruelty. For instance, where I work in Central Africa, King Leopold of Belgium was the main perpetrator-he is renowned to this day for his cruelty...But the African people are far more resilient and resourceful than we give them credit for. They will emerge in the 21st Century as a leading engine of growth and innovation.]
Yes this is exactly what I mean but it also includes all the handouts in the name of "helping" such as the IMF, World Bank, and Green Revolution (you might be the only one around here who remembers this one). You also forgot to include the haphazard national boundaries drawn by the West rather than historical boundaries of existing kingdoms.
BTW.....The Republican party is a lost cause.
That is what I meant by "contorting national borders".
It is a very tricky thing to provide assistance to developing economies. My group commits to work in villages for decades so we avoid the "hit and run" attitude of so many NGO's. We get to know the issues very well. We work very closely with and through local folks and we listen to them....We also work on almost all facets of village life so that we can plan out the life of the project and try to address the many consequences that may evolve from any particular activity. So for example, if we build a maternity clinic we will want to consider how to bring in more jobs for when the population increases.
But when all is said and done, the best thing we can do is help young girls and women. The more education they have available, the longer they delay childbearing...The longer they can put off childbearing, the better for their health, their children's health and the health of the village economy.
GBA and like-minded individuals are doing something to reduce environmental impact but its a tiny impact compared to the world's population or even just the US and Canada overall. Europe is doing more, requiring Passivhaus in new construction in Belgium and some areas of Germany.
Human beings have infested the planet. Our infrastructure is visible from space. Our impact is so large, that we have changed the climate. Have we killed off about a third of other species so far?
When human populations get too large, historically we experience wars over resources and land, pandemics, or starvation. Looks a lot like 2022.
Somehow we have to address overpopulation. China's one-child policy helped them for a while, reducing starvation and poverty. Birth control and abortion have some effect on population, but they are becoming illegal in the "forward-looking" USA.
When looking for solutions to problems, I think it is best to dig down to the root. Find where the root of the problem is, be honest about it. Use the scientific method, because it is the most honest tool we have. If new evidence proves me wrong, no problem, move on in the direction the best quality evidence points me.
Robert, almost no one will touch your comment because humans teach each other from birth not to talk about what you are talking about. I agree over population has to be talked about more, but the forces trying to prevent that conversation are possibly too powerful at this point. I observe children being indoctrinated with strange and provably false information everywhere on the planet I look. And those of us who have escaped this land of make-believe are trained even more forcibly to not question these bizarre notions. If that is not a perfect recipe for cooking up a population of people who lack the very important ability to think logically, I do not know what would be.
It seems to me, when you teach kids to believe anything faithfully and without evidence, you slowly and surely take away their innate ability to think logically. Why is this important to discuss on GBA? Thinking logically in terms of building code or building science should be based on solid scientific methods, right? So how in this world do we have the code books we have? How are those helpful if the average human cant understand them and inspectors from town to town can't agree on the interpretation. Interpretation? I know some other "books" like that. I think if anything starts to get a little too complicated, there is usually a little BS in the mix.
Most discouraging to me these days though is, we can build using provable science based practices, but the more I read on GBA, the more I see this work as the band aid on a symptom. I think we are screwed. What good is a band aid if we let the bigger problem destroy us?
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