The baseline response of an ethical judicial system to the ongoing climate crisis should be to give wide deference to the president and Congress—the political branches—to address the impending disaster as they see fit. It’s not for unelected, unaccountable judges to decide the country’s response to global climate change, and it’s certainly not for a judiciary comprised of old people who will not live to swelter 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 courts right in the middle of it. And, of course, those conservatives reliably interject themselves on behalf of the fossil fuel industry or other anti-environmentalist forces. A byproduct of leaving a conservative majority in control of the courts for the next generation is that those conservatives simply will not allow meaningful congressional legislation to address climate change. Our children will pay the future cost of letting conservatives dominate 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 in the nation’s wetlands and make it easier for developers to build homes on wetlands without obtaining a federal permit.
The Supreme Court will get around to giving the green light to polluters sometime next year, but in the meantime it will have a chance to provide even more direct aid to the forces ruining the planet. On February 28, the justices will hear arguments for West Virginia v. Environmental Protection Agency. The question at the heart of the case is whether the Environmental Protection Agency should be allowed to issue rules regulating greenhouse gas emissions from power plants under the authority given to it by the Clean Air Act. Depending on how it’s worded, a decision against the EPA could effectively cripple the federal government’s ability to fight climate change.
What’s particularly shocking about this case is that the EPA does not currently have any such rules in place. The agency tried to regulate greenhouse emissions under President Barack Obama’s Clean Power Plan, but conservative justices (of course) blocked that plan from taking effect. Then, the Trump administration came in and shoved the CPP off the edge of their flat Earth. Arguably, the D.C. Circuit has since reopened the possibility of a revised CPP, but the Biden administration has said that it will not try to reinstate the plan. Instead, it has instructed the EPA to come up with a completely different rule, a process that is underway at the agency right now.
This is where things should pause. But West Virginia—along with 18 other Republican-leaning states, and various fossil fuel companies and interests in this lawsuit—is asking the Supreme Court to stop the EPA rulemaking before it even makes a rule. The Supreme Court is not supposed to do that. It is supposed to hear only what’s called “cases and controversies.” That means it’s only supposed to issue rulings on “live” cases and deal with laws or regulations already on the books. It’s not supposed to give advisory opinions on how it might view a law in the future; it’s only supposed to rule on law that’s actually in effect.
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 even issued a rule, is a radical departure from the norm. But the conservatives have already tipped their hand at what they will do. In January, the court stopped the Occupational Safety and Health Administration from issuing a “vaccine or test” mandate to employers with 100 or more workers. As I explained in real time, that decision didn’t stem from the court’s own vaccine hesitancy. It stemmed from the conservative crusade against the administrative state. Conservatives on the court have shown that they will literally let workers get sick from Covid to further curtail the power of executive agencies.
Cases like WV v. 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 unfettered capitalism actually get made. Congress does not have the time or frankly the expertise to get deep into the weeds and regulate industries down to the parts per million. It needs the experts at places like the EPA, the SEC, OSHA, and a host of other agencies to write the specific rules around the general guidelines Congress has indicated through legislation.
Conservative jurists claim that diminishing the power of executive agencies places more power in the hands of the people, through their representatives in Congress. But the opposite is true. Conservative attacks on the administrative state place more power in the hands of unelected judges, who can pick and choose which rules they like and which ones they don’t. And it places more power in the hands of industry lobbyists, who have merely to sway politicians and judges instead of scientific experts.
All of these arguments have been made many times by progressives with legal training. In WV v. EPA, we now have senators making these arguments to the Supreme Court itself. A fairly unusual amicus brief was filed on behalf of the EPA by Senators Sheldon Whitehouse, Richard Blumenthal, Bernie Sanders, and Elizabeth Warren. The brief was cowritten by constitutional scholar and Berkley Law Dean Erwin Chemerinsky. The senators argue that the court has been stacked with justices picked by outside groups, including the fossil fuel industry, specifically for the purpose of dismantling the regulations the fossil fuel industry abhors. The brief argues:
To achieve the political goal of “deconstruction” of the so-called “administrative state,” judicial appointments were made part of the “larger 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 stated plainly that “the judicial selection and the deregulation effort are really the flip side of the same coin.” More than $400 million was spent on this deregulatory effort targeting the judiciary, with much of it coming in large donations from anonymous sources, while fossil fuel interests donated added millions to the then-president’s reelection campaign.
The senators are correct. It’s absolutely true that two of the justices on the Supreme Court, Neil Gorsuch and alleged attempted rapist Brett Kavanaugh, were handpicked by Don McGahn, harbor fringe deregulatory leanings, and were overwhelmingly supported by the fossil fuel industry. But it’s still rare for senators to tell the justices who they are to their faces. People don’t often walk into Transylvania selling mirrors.
That said, conservatives on the court are unlikely to be shamed by this brief, meaning they will likely do what they were sent by the fossil fuel industry to do and rule against the EPA. Gorsuch and Kavanaugh will almost certainly do as they were nominated to do and join John Roberts, Clarence Thomas, and Samuel Alito, who were all integral in stopping the Clean Power Plan and have shown no willingness to let environmental regulations survive. That already looks like five votes against the EPA—and Amy Coney Barrett has given no indication that she intends to break from her conservative brethren when it comes to their shared loathing of agency expertise.
From where I sit, this conservative court is worse than useless for meaningful action to arrest climate change within my lifetime. We could get cute and ask Congress to pass a new law after the court rules against EPA rulemaking—before the agency even makes a rule—but, realistically, that’s not going to happen. Congressional Republicans either don’t believe climate change is real or do but don’t care because they’ll slip the mortal coil before the stuff hits the fan. Besides, Congress has literally already passed the Clean Air Act and reauthorized it a number of times. If the conservative court is willing to interpret “clean air” as insufficient authority to regulate the air, literally any environmental legislation Congress passes will get nuked into nothingness by the aggressive and unhinged right-wing court.
I reached out to Senator Whitehouse about this problem, and he wasn’t entirely hopeless: “All the justices have a responsibility to the Court as an institution, beyond loyalty to the forces that got them there,” he wrote in an e-mail. I guess I can always wish for conservative justices to watch the movie Don’t Look Up, but Whitehouse mentioned one last reservoir of power Congress might deploy to save the planet. “The unassailable climate remedy is a pollution fee on greenhouse gas emissions. Even a Supreme Court that fossil-fuel dark money built can’t get around Congress’s clear power to establish such a fee under Congress’s taxation powers. That would be a good place to start.”
Now, there’s an idea I can get behind. See, the utility of an executive agency is that it can really get in there and regulate using the legal equivalent of a scalpel. But if Congress wants to use its power to tax, that’s a hammer stroke. 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 that some of the conservative justices will make up new theories to redefine the congressional tax power in ways Federalist Society donors find pleasing, but maybe not all of them. We already know from the Affordable Care Act cases that at least John Roberts and maybe Kavanaugh and Barrett understand how taxes work.
It’s worth a shot, because our doom approaches, whether Republicans on the bench or in the Senate acknowledge it or not. Climate change does not care about the administrative state. Rising seas are not waiting for the Koch network to invest in dams. The extinction of the planet’s biodiversity is not deferring to the conservative ideological crusade.
Doing nothing for 30 years as we wait out conservative control of the Supreme Court is simply not an option. The Supreme Court either needs to get pushed on board with the rest of us—or get shoved out of the way.