If you suspect that Supreme Court conservatives are pushing an ideological agenda, they will probably find rest in the next few weeks.
Before it breaks for summer later this month, the court could not only curtail or severely curtail the constitutional right to abortion and expand gun rights but also undermine vital environmental protections. .
From my perspective as an environmental attorney and former clerk to Justice Sandra Day O’Connor, a case that’s huge West Virginia vs. EPA,, Which should be fixed within weeks. Justices will determine how much authority the Environmental Protection Agency has to deal with the climate crisis by regulating the emissions of climate-warming carbon dioxide from power plants.
Obama-era regulation on the issue never took effect because Supreme Court conservatives suspended the rule. And it will never take effect because the Biden administration is in process propose a new rule, Therefore no dispute has yet been settled, and thus there is no “matter or dispute” that would support the jurisdiction of the court.
Why the court is going beyond call ball and strike, as Chief Justice John Roberts memorably does described Her role, to take up a case, is surely not her jurisdiction to be heard? Some of the court’s conservatives seem eager to aid polluting industries by curtailing the power of agencies to regulate in the public interest. More specifically, some judges indicated their interest In sharply limiting the EPA’s authority by invoking and expanding the “key question” doctrine to regulate greenhouse gas emissions in the West Virginia case. This principle invites non-elected judges to second-guess Congress when lawmakers give an agency the authority to regulate on matters of “major” political or economic importance.
Agencies need latitude when it comes to regulation in a world of new problems and scientific complexity. Congress regularly gives them broad powers through broad words. And Congress places its limits on the discretion of the agency. Laws such as the Administrative Procedure Act require that agency actions be in line with science and informed by public input. In addition, Congress has enough tools to get a wayward agency back on track: confirmation and inspection hearings, budget directives, or even statutory amendments if necessary.
The expansion of the principle of key questions would destabilize this legislative balance and shift power to the courts. Doctrine will leave with agencies little power To tackle new and pressing environmental problems like climate change without a steady stream of statutory directives on the degree of detail that an inexperienced and political entity like Congress is unable to provide, Even worse, the theory is uncertain and manipulable. Even conservative justices struggle to define what triggers the “key question” review. Virtually any environmental regulation worth releasing has a “major” impact on some industry, so the doctrine invites polluters to challenge the rules and gives sympathetic judges a powerful tool to kill them.
The climate and the world are changing. What will be the challenges in the future, and how should we respond to them?
Even more so, West Virginia v. EPA may be only the beginning. In its next term, the Supreme Court will maybe get another Important environmental issue: Sackett v. EPA, which deals with the geographic reach of the Clean Water Act.
Once again, the court has agreed to consider a case that would ordinarily have been rejected: appeals courts Continuously Sackett agreed on the scope of the statute related to the case, and the EPA and the Army Corps of Engineers will soon finalize a new proposed rule to provide more clarity on how the law should work. Then again, the court is aggressively reaching out to hear a case that could advance a regulatory policy agenda: one of the nation’s most important environmental laws administered by an agency mandated to protect public health and the environment. limiting the range.
The Clean Water Act prohibits polluters from dumping waste into the country’s waters without a permit. Conservative groups and extractive industries want the court to recognize that the law does not protect certain wetlands, which would benefit polluting industries to the detriment of downstream waters and people.
Americans are increasingly concerned about the environment, and two-thirds of us think our government more must be done to protect it, Why does it seem, then, that Supreme Court conservatives are going so far as to hinder federal efforts to control pollutants and slow climate change?
This is because the court’s five most conservative justices were chosen primarily for their allegiance to an agenda that is so far from the legal mainstream that even Charles Fried, President Ronald Reagan’s conservative Solicitor General also called it “reactionaryIn addition (and not by chance), he was confirmed by senators who were simultaneously elected low vote Compared to senators who opposed his confirmation. three of them — Neil Gorsuch, Brett Kavanaugh, and Amy Connie Barrett — were nominated by a president who lost the popular vote.
This deep connection between the will of the people and the court’s non-regulatory agenda on the environment could not have come at a more alarming time. Intergovernmental Panel on Climate Change have warned That our window to preventing irreversible climate damage is rapidly closing. If the Supreme Court chooses to take this moment to advance an agenda of limiting federal regulatory power, it will serve the interests of corporations – fossil fuel companies in particular – to bring people and the planet closer to the point of no return and Pushing closer.
sambhav shankari is senior vice president of programs at EarthJustice, an environmental law group.