The basic response of an ethical judicial system to the ongoing climate crisis must be to give broad deference to the president and Congress, the political powers that be, to deal with the impending disaster as they see fit. It is not for unelected and unaccountable judges to decide the country’s response to global climate change, and it is certainly not up to a judiciary made up of older people who will not live to suffocate in the consequences of their actions to determine whether we take immediate action.
Instead of staying out of the climate debate, however, conservatives in the judiciary increasingly want to put the courts right in the middle. And of course those conservatives reliably interject on behalf of the fossil fuel industry or other anti-environmental forces. A byproduct of leaving control of the courts to a conservative majority for the next generation is that those conservatives simply won’t allow meaningful legislation from Congress to address climate change. Our children will pay the future cost of letting conservatives rule the courts now.
This week, the Supreme Court agreed to hear a case that could allow it to drastically limit the scope of the Clean Water Act. Conservatives would like to limit the term “wetlands” to areas that are physically connected to a navigable river. That rule would make it easier for industries to dump pollutants into the nation’s wetlands and make it easier for developers to build homes in wetlands without getting a federal permit.
The Supreme Court will take it upon itself to give the polluters the green light sometime next year, but in the meantime it will have the opportunity to provide even more direct help to the forces ruining the planet. On February 28, the magistrates will hear arguments in favor West Virginia v. Environmental Protection Agency. The central question in the case is whether the Environmental Protection Agency should be allowed to issue rules regulating greenhouse gas emissions from power plants under the authority granted to it by the Clean Air Act. Depending on how it is written, a decision against the EPA could effectively cripple the federal government’s ability to combat climate change.
What is particularly shocking about this case is that the EPA currently has no such rules. The agency tried to regulate greenhouse gas emissions under President Barack Obama’s Clean Power Plan, but conservative justices (of course) blocked the plan from going into effect. Then the Trump administration came in and pushed the CPP over the edge of their flat Earth. The DC Circuit has arguably since reopened the possibility of a revised CPP, but the Biden administration has said it will not try to reinstate the plan. Instead, he has instructed the EPA to come up with an entirely different rule, a process that is underway at the agency right now.
This is where things should stop. But West Virginia, along with 18 other Republican-leaning states and several fossil fuel companies and interests in this lawsuit, is asking the Supreme Court to stop EPA rulemaking before it even issues a rule. The Supreme Court should not do that. It is supposed to hear only what is called “cases and controversies”. That means it’s only supposed to rule on “live” cases and deal with laws or regulations that are already on the books. I’m not supposed to give advisory opinions on how I might see a law in the future; it is only supposed to rule on the law that is actually in force.
Even if people want to argue that Biden is lying, that he will resurrect the CPP, the Supreme Court is not supposed to rule on what Biden might do. Stepping in now, before the EPA has issued a rule, is a radical departure from the norm. But the Conservatives have already pointed their hand at what they will do. In January, the court blocked the Occupational Safety and Health Administration from issuing a “shot or test” mandate to employers with 100 or more workers. As I explained in real time, that decision was not due to the court’s own doubts about the vaccine. It arose from the conservative crusade against the administrative state. Conservatives on the court have shown that they will literally let workers get sick with covid to further reduce the power of executive agencies.
Cases like W VV. EPA are why. Conservatives have developed an entire legal language around diminishing the power of the administrative state. That’s because these executive agencies are where the regulations and restrictions on unrestricted capitalism are actually made. Congress doesn’t have the time or, frankly, the experience to dig into the weeds and regulate industries down to parts per million. You need experts in places like the EPA, the SEC, OSHA, and a host of other agencies to write the specific rules around the general guidelines that Congress has indicated through legislation.
Conservative jurists argue that the diminution of the power of executive agencies puts more power in the hands of the people, through their representatives in Congress. But the opposite is true. Conservative attacks on the administrative state put more power in the hands of unelected judges, who can choose which rules they like and which they don’t. And it puts more power in the hands of industry lobbyists, who simply have to influence politicians and judges rather than scientific experts.
All of these arguments have been put forward many times by progressives with legal training. In W VV. EPA, now we have senators presenting these arguments before the same Supreme Court. Senators Sheldon Whitehouse, Richard Blumenthal, Bernie Sanders, and Elizabeth Warren filed a rather unusual amicus curiae brief on behalf of the EPA. The report was co-authored by constitutional scholar and Berkley law dean Erwin Chemerinsky. The senators argue that the court has been packed with judges chosen by outside groups, including the fossil fuel industry, specifically for the purpose of dismantling regulations that the fossil fuel industry abhors. The letter argues:
To achieve the political goal of “deconstruction” of the so-called “administrative state,” judicial appointments were made part of the “wider plan” to eradicate regulatory agencies. In the last administration, former White House Counsel Don McGahn “exercised an unprecedented degree of control over judicial appointments” and clearly stated that “judicial selection and the deregulation effort are really the other side of the same coin.” More than $400 million was spent on this deregulation effort targeting the judiciary, much of it coming from large donations from anonymous sources, while fossil fuel interests donated millions to the then president’s re-election campaign.
The senators are right. It is absolutely true that two of the Supreme Court justices, Neil Gorsuch and alleged attempted rapist Brett Kavanaugh, were handpicked by Don McGahn, harbor fringe leanings toward deregulation, and are overwhelmingly supported by the fossil fuel industry. . But it’s still rare for senators to tell judges who they are to their faces. People don’t usually come into Transylvania selling mirrors.
That said, the conservatives on the court are unlikely to be embarrassed by this report, which means they will likely do as the fossil fuel industry sent them and rule against the EPA. Gorsuch and Kavanaugh will almost certainly do what they were nominated to do and join John Roberts, Clarence Thomas and Samuel Alito, who were instrumental in stopping the Clean Power Plan and have shown no will to let environmental regulations survive. That sounds like five votes against the EPA already, and Amy Coney Barrett has given no indication that she intends to break with her conservative siblings when it comes to her shared hatred of her for the experience of the agency.
In my view, this conservative court is worse than useless for meaningful action to stop climate change in my lifetime. We could get all cute and ask Congress to pass a new law after the court rules against EPA rulemaking, even before the agency issues a rule, but realistically, that’s not going to happen. Congressional Republicans don’t believe climate change is real or they do, but they don’t care because the death spiral will slip away before things come to an end. Furthermore, Congress has literally already passed the Clean Air Act and reauthorized it multiple times. If the conservative court is willing to interpret “clean air” as insufficient authority to regulate The airliterally any environmental legislation Congress passes will be destroyed by the aggressive and deranged right-wing court.
I reached out to Senator Whitehouse about this issue and he wasn’t entirely desperate: “All judges have a responsibility to the Court as an institution, beyond loyalty to the forces that brought them there,” he wrote in an email. . I guess I can always wish the conservative judges would see the movie. don’t look up, but Whitehouse mentioned one last reservoir of power that Congress could deploy to save the planet. “The unassailable climate remedy is a pollution tax on greenhouse gas emissions. Even a Supreme Court that built the dark money of fossil fuels cannot escape the clear power of Congress to establish such a tariff under the tax powers of Congress. That would be a good place to start.”
Now, there is an idea that I can support. You see, the utility of an executive agency is that you can actually go in and regulate using the legal equivalent of a scalpel. But if Congress wants to use its power to impose taxes, that’s a hammer blow. Tax them for destroying the planet and use the money to build infrastructure to protect us from the damage we’ve already done.
Oh, I’m sure some of the conservative justices will come up with new theories to redefine the taxing power of Congress in ways that Federalist Society donors find palatable, but maybe not all. We already know from the Affordable Care Act cases that at least John Roberts and perhaps Kavanaugh and Barrett understand how taxes work.
It’s worth a try, because our end is near, whether Republicans on the bench or in the Senate recognize it or not. Climate change does not care about administrative status. Sea level rise is not waiting for the Koch network to invest in dams. The extinction of the planet’s biodiversity is not yielding to the conservative ideological crusade.
Doing nothing for 30 years while we wait for conservative control of the Supreme Court is simply not an option. The Supreme Court needs to be pushed on board with the rest of us, or pushed out of the way.
George is Digismak’s reported cum editor with 13 years of experience in Journalism