The Supreme Court confounds government’s efforts to deal with the ‘crisis of the day’

By Tom Baxter

On July 7, 1977, White House science advisor Frank Press sent President Jimmy Carter a one-page memo titled “Release of Fossil CO2 and the Possibility of a Catastrophic Climate Change.”

“As you know this is not a new issue,” Press wrote. “What is new is the growing weight of scientific support which raises the CO2-climate impact from speculation to a serious hypothesis worthy of a response that is neither complacent nor panicky.”

Press was not, as you can see, an impetuous man. Three years later, when the chair of the President’s Council on Environmental Quality, Gus Speth, urged dramatic steps to deal with climate change, Press rejected his proposal as “exceptionally pessimistic” and urged more study.

His cautious words are worth recalling in light of the phrase Chief Justice John Roberts borrowed from an earlier ruling to explain the Supreme Court’s decision that the Environmental Protection Agency doesn’t have the authority to regulate carbon emissions in existing power plants.

“Capping carbon dioxide emissions… may be a sensible ‘solution to the crisis of the day,’ but it is not plausible that Congress gave the EPA the authority to adopt on its own such a regulatory scheme,” Roberts wrote.

“The day” to which Roberts referred, intentionally or not, is the day that memo hit Carter’s desk 45 years ago. Every year or so since blue-ribbon scientific panels have concluded that the “catastrophic climate change” Press referred to is coming faster than he thought. Revolutionary advances have been made in the fields of alternative energy and energy conservation. The business world has begun to take the problem seriously.

But government’s ability to respond to this challenge is more doubtful today than it was in 1977 when a nuclear engineer sat behind the desk in the Oval Office. Entrusting the hapless U.S. Congress with the fine print involved in reducing carbon emissions should only spur more cynicism about government’s effectiveness.

When Press sent that memo, there were fears — well-founded as it turned out — that regulators would be soft on polluters. But a scenario in which the regulators attempt to slow the progress of utilities attempting to reform themselves would have seemed ludicrous. Yet that’s exactly what is being played out in the current negotiations between Georgia Power and the staff of the state Public Service Commission. The utility wants to close most of its coal power plants within five years, but the PSC staff has questioned Georgia Power’s financial projections and may recommend keeping Plant Bowen open for an additional eight years.

The word that is key to understanding this astonishing reversal is “liability.” Utilities are moving away from coal at a rate faster than the government plan which was at the center of the case last week, because coal is becoming increasingly less competitive with natural gas and alternative energy, and entails far more risk of environmental lawsuits.

The court’s ruling last week, which widens the gray area within which prospective litigants might operate, will only increase these concerns. Business likes certainty, and the court last week voted 6-3 for uncertainty. The decision may be a disaster for the planet, as some think, or it may be constitutionally the right thing to do, as others think. But it is going to be a honeypot for lawyers no matter who’s right about the greater issues involved.

“Not a week passes that I don’t have an interesting conversation with a CEO who is focused on reducing his or her company’s climate impact,” Fortune CEO Alan Murray wrote recently in a newsletter, CEO Daily. “This isn’t because they are kowtowing to the ‘woke left,’ as former Vice President Mike Pence claimed recently, but rather because climate action has become a business imperative.”

It isn’t because business hasn’t been complicit in resisting government efforts to cope with environmental problems, either. Just the same, business has grown more sensitive to “the crisis of the day” than either the U.S. Supreme Court or the Georgia PSC.