Sunday, December 10

The Supreme Court vs. Earth

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.

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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.

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