Climate Denial Crock of the Week

New ruling will severely impact the regulatory power of potentially every agency. Bill McKibben explains below.

Bill McKibben in The New Yorker:

Credit where due: the Supreme Court’s 6–3 ruling in West Virginia v. E.P.A. is the culmination of a five-decade effort to make sure that the federal government won’t threaten the business status quo. Lewis Powell’s famous memo, written in 1971, before he joined the Supreme Court—between the enactment of a strong Clean Air Act and a strong Clean Water Act, each with huge popular support—called on “businessmen” to stand up to the tide of voices “from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians” calling for progressive change. He outlined a plan for slowly rebuilding the power of industrial élites, almost all the elements of which were taken up by conservative movements over subsequent years: monitoring textbooks and TV stations, attacking left-wing faculty at universities, even building a publishing industry. (“The news stands—at airports, drugstores, and elsewhere—are filled with paperback and pamphlets advocating everything from revolution to erotic free love. One finds almost no attractive, well-written paperbacks or pamphlets on ‘our side,’ ” Powell wrote, but he was able to imagine a day when the likes of Ann Coulter or Sean Hannity would reliably top the best-seller lists.)

Fatefully, he also wrote: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” At the time he was writing, the “activist” court was standing up for things that most Americans wanted, such as clean air and water—and the right of women to control their own bodies. But the Supreme Court, and hence the judiciary, has come under the control of the kind of men that Powell envisioned—he may not have envisioned women on the bench, but Amy Coney Barrett is otherwise his type of judge. And, with this ruling, they have taken more or less total control of Washington’s ability to generate policy that might disrupt the status quo.

In essence, the ruling begins to strip away the power of agencies such as the E.P.A. to enforce policy: instead of allowing federal agencies to enforce, say, the Clean Air Act to clean the air, in this new dispensation, Congress would have to pass regulations that are much more explicit, as each new pollutant came to the fore. As West Virginia’s attorney general explained, “What we’re looking to do is to make sure that the right people under our constitutional system make the correct decisions . . .  these agencies, these federal agencies, don’t have the ability to act solely on their own without getting a clear statement from Congress. Delegation matters.”

Amy Coney Barrett’s father, an attorney for Shell Oil for many years, must be so proud of her!

— Matthew Sitman (@MatthewSitman) June 30, 2022

But, of course, the Court has also insured that “getting a clear statement from Congress” to address our deepest problems is essentially impossible. The decision in Citizens United v. F.E.C., in 2010, empowered corporations to game our political system at will. That explains, in part, why Congress has not passed a real climate bill in decades. The efforts that Democratic Administrations have made to try and control greenhouse gasses have mostly used provisions of the Clean Air Act because it is the last serious law of its kind that ever came to a President’s desk (Nixon’s, in this case).

A train of similar cases now approaches the high court—they would, for instance, make it all but impossible for the federal government to regulate tailpipe emissions or to consider the financial toll of climate change when deciding whether to approve a new pipeline. As the Times reported in a recent investigation, the plaintiffs in these cases “are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.”

People saying “don’t vote, it doesn’t help:” this is how Trump won in 2016 by 77k votes, and appointed the 3 justices who overturned Roe and more. Want to see how much worse things can get, be apathetic and let Republicans take majorities. This hand wringing is a fool’s errand.

— Amy Siskind 🏳️‍🌈 (@Amy_Siskind) June 30, 2022

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Wall Street may be the only other actor large enough to actually shift the momentum of our climate system. The pressure on banks, asset managers, and insurance companies will increase precisely because the Court has wrenched shut this other spigot. Convincing banks to stop funding Big Oil is probably not the most efficient way to tackle the climate crisis, but, in a country where democratic political options are effectively closed off, it may be the only path left. 

However, the Supreme Court avoided making a broad ruling.

They didn't prohibit the EPA from other kinds of greenhouse gas regulations, nor did they attack the Clean Air Act, the EPA, or regulatory process at large.

This narrow outcome avoids most of what people had feared.

2/2

— Dr. Robert Rohde (@RARohde) June 30, 2022

“The Court appoints itself — instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening…" Kagan

— max (@maksim_unltd) June 30, 2022

A clearly angry Kagan pulling no punches: "The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards"

— Kate Riga (@Kate_Riga24) June 30, 2022

There’s something about a problem being unprecedented in human history that makes applying legal precedent to it seem absolutely clownish

— Amy Westervelt (@amywestervelt) June 30, 2022

Catastrophic. A filibuster carveout is not enough. We need to reform or do away with the whole thing, for the sake of the planet. https://t.co/if8PIbfs42

— Alexandria Ocasio-Cortez (@AOC) June 30, 2022