Another day, another utterly catastrophic ruling from the activist hard-right majority on the Supreme Court. This new decision does even wider damage than taking away the reproductive rights of women in this country. It potentially imperils the future of every human being on Earth.
In a 6-to-3 ruling, the court went out of its way to limit the ability of the EPA to meaningfully regulate carbon dioxide and other greenhouse gas emissions from existing power plants, under the provisions of the decades-old Clean Air Act. I say the court went out of its way because no such regulation was even being challenged in the case at hand, West Virginia v. EPA.
The Obama administration developed a set of EPA rules governing power plants, called the Clean Power Plan, but the rules never took effect. The Trump administration canceled President Barack Obama’s program and issued its own, far weaker rules. But those never took effect either. And because the Biden administration has not yet issued its promised emissions rules for power plants, there was nothing concrete for the Supreme Court to decide.
The state of West Virginia and several coal-mining companies sued to prevent President Biden’s EPA from imposing rules that it had no intention of trying to impose. Why would the nation’s highest court seize on such a flimsy pretext to sharply curb the EPA’s power — and, by extension, perhaps that of other federal agencies? Because it is an article of faith in the far-right legal community — the six-vote majority’s hometown — that what conservatives call “the administrative state” has become too big and powerful, and must be cut down to size.
This is a purely ideological stance, with no relationship to how the federal government needs to be able to function in the real world. When Congress passes a law, it cannot possibly lay out every single step by which that law is to be implemented or every single circumstance in which it might be applied. The executive branch is responsible for enforcing the statutes that Congress writes, and it does so through an exhaustive rulemaking process that involves input from experts, stakeholders and the public. Yes, it’s all very bureaucratic. Try meeting the needs of a nation of 332 million people without a bureaucracy.
But reality has little or no effect on the imprudent jurisprudence of Chief Justice John G. Roberts Jr., who wrote this majority opinion, and Associate Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Dissenting, as usual, were Justices Sonia Sotomayor, Elena Kagan and — on the day of his retirement — Stephen G. Breyer. Going forward, Breyer’s replacement, Justice Ketanji Brown Jackson, gets to join Sotomayor and Kagan in trying to bring sanity to the court.
Meanwhile, the planet is baking itself alive.
The punishing impacts of climate change are all around us, evident for all to see, including a certain nine individuals who wear black robes in their grand workplace on Capitol Hill. With the original passage of the Clean Air Act in 1963, Congress gave the executive branch — the EPA had not been established yet — a broad mandate to regulate pollution. Justice Antonin Scalia once claimed in a dissent — wrongly — that there was “profound” scientific uncertainty about whether greenhouse gases caused global warming. There was exceedingly little uncertainty then, and there is no uncertainty now.
China, India, Brazil, and other wealthy countries in Europe and Asia must cut their emissions if we are to avert the most apocalyptic warming scenarios. But the United States, as the world’s leading economic and military power — and as a major producer of fossil fuels — needs to lead boldly if it expects the rest of the world to follow.
Someday, I hope, our political system will once again be functional enough for a future Congress and a future president to agree on wide-ranging measures to bring about a rapid shift to clean energy sources. By then, however, it may be too late.
Nothing forced the Supreme Court to rule against a set of climate change regulations that had already become moot. Nothing except the self-righteous impatience of the ultraconservative majority to flex its muscles. Responsible political leaders need to assert themselves before this runaway court does irreparable harm. For the planet, there is no Plan B.