On June 30, 2022, the U.S. Supreme Court decided, in West Virginia v. Environmental Protection Agency, that while “[c]apping 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’,” Congress had not, in the Clean Air Act, given the U.S. Environmental Protection Agency (EPA) the authority to adopt on its own such a regulatory scheme. The court thus ruled that, without more explicit congressional authorization, the EPA lacks the authority to require coal-generated producers of electricity to build or invest in new natural gas plants, wind farms or solar installations or to purchase emission allowances or credits as part of a cap-and-trade system.

The dissent in the case, echoed by many commentators, accused the court of stripping the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” But whether Congress did or didn’t give the EPA that power, the consequence of the ruling is clear. If the United States wishes effectively to address the risks of climate change, Congress must act.