The Radical Supremes, Climate Edition

This morning, the Supreme Court of the United States overturned Roe v. Wade, after a decades-long effort by corporate and religious conservatives to return the court to its anti-democratic roots.

As it wraps up its current session, the Supreme Court will also announce its decision in West Virginia v. EPA, a challenge to the U.S. Environmental Protection Agency’s greenhouse pollution regulations, and potentially the entire federal administrative state. The stakes for the climate are high, as Bloomberg has reported:

If the Supreme Court does indeed “gut the authority of the EPA to regulate greenhouse gas emissions from power plants,” it will weaken the landmark 2006 climate decision of Massachusetts v. EPA, which affirmed the EPA’s clear authority to regulate greenhouse gas pollution under the Clean Air Act. But West Virginia, which challenges the defunct Clean Power Plan, has the potential to be about much more than that.

Observers expect the court to make a sweeping ruling to wipe away the Chevron deference doctrine, established in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council. The court rejected NRDC’s attempt to throw out a Ronald Reagan-era EPA rule that defined the statutory term “stationary source,” ruling that courts should defer to the judgment of experts at executive branch agencies in interpreting congressional statues and issuing regulations.¹

WV v. EPA: Going After A Plan That Doesn’t Exist

In 2018, the Trump administration scrapped President Barack Obama’s framework for regulating power-plant greenhouse pollution, dubbed the Clean Power Plan. But in January 2021, the D.C. Circuit of Appeals rejected the Trump plan for gross inadequacy, effectively restoring the Clean Power Plan.

Rather than pressing their luck that a hostile Supreme Court majority would confirm the D.C. Circuit’s ruling, the Joe Biden administration sought to render the coal mining industry’s challenges to the EPA moot by insisting it had no intention of reinstating the CPP, and instead would come up with a whole new plan for the EPA to curb climate pollution. The Biden administration hoped this would discourage the Supreme Court from taking up the case at all, but the strategy did not work. Coal companies and officials from West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming continued their suits against the Clean Power Plan, and the Supreme Court took the case. The strong implication is that the court intends to use this case to issue a broad ruling about the administrative state and the role of federal regulation.

“Major Questions”

The West Virginia case ostensibly hinges on the “major questions” exception to the Chevron doctrine, which holds that where the law is ambiguous, the Court can rein in an administrative agency’s ability to decide “decisions of vast economic and political significance.” The first time the court applied this principle was in 2000, in a 5-4 decision preventing the FDA from regulating tobacco (FDA v. Brown & Williamson).

The court seems inclined to side with the coal industry’s aim of “constrain[ing] the EPA’s power in future rulemaking” by finding that climate change is a “major question” that cannot be regulated through existing laws. In short, if Biden or any other future president wants to do something about climate change, Congress must further clarify what should be done.

As Harvard Law Professor Richard Lazarus has explained, the dysfunction of Congress in recent decades has made the paradigm that has dominated since the New Deal era— where Congress passes a broad outline giving executive agencies authority to regulate in a certain area, then allows agencies to fill in the details within that mandate— highly vulnerable. Since the last time Congress passed anything really significant in the environmental space was the Clean Air Act Amendments of 1990, the EPA and other agencies are on, shall we say, thin ice with this radical court, despite the reality of the escalating climate crisis.

But the court may go even further, and carve out broader exceptions to Chevron or effectively nullify it altogether.

A 5-4 Victory for Climate

In the 2006 Massachusetts decision, the Massachusetts AG had successfully gambled that former swing conservative Justice Anthony Kennedy would side with the four liberals on the Court at the time, as he ultimately did. As Lazarus describes in his excellent book The Rule of Five, the court’s 5-4 decision in Massachusetts was a signature win. Many major environmental groups that had been original litigants in that suit had pleaded with the Massachusetts Attorney General’s office not to take that case all the way to the Supreme Court, fearing that the Court’s reactionary tilt would undermine the progress that had been made through a surprisingly favorable lower court opinion.

Thankfully, Massachusetts ultimately prevailed in that case, due in large part to smart and candid arguments by Massachusetts’ lawyers about the scope of the threat that climate change poses. During oral arguments, right-wing Justices Antonin Scalia and Samuel Alito had questioned whether climate change really met the necessary standard of “imminent harm,” and the lawyer for Massachusetts convincingly laid out the stakes, telling Alito, “your honor, once [greenhouse gases] are emitted the laws of physics take over, so our harm is imminent in the sense that lighting a fuse on a bomb is imminent harm,” and telling Scalia that the economic damage from Massachusetts losing a considerable chunk of its coastline was not a harm that would “suddenly spring up in 2100.”

The Campaign Against the Chevron Doctrine

During the period of the Rehnquist and early Roberts Courts, insurrectionist Justice Clarence Thomas waged a campaign to overturn the Chevron doctrine. Until recently, Thomas did not have much support for his views around Chevron, even from his most conservative fellow justices. Most notably, this included the late Justice Scalia, who was a Chevron defender.

After Mitch McConnell helped steal a Supreme Court seat during Obama’s final year as president, however, Trump appointed Justice Neil Gorsuch to replace Scalia. Gorsuch has argued in favor of eliminating the Chevron doctrine and allowing the courts to pick and choose which regulations to overturn, saying that “it seems to me that in a world without Chevron very little would change.” Gorsuch’s desire to “severely restrict the federal government’s ability to effectively address national problems,” as the People for the American Way put it when he was nominated, was cited by the Federalist Society as a key reason why they had pushed Trump to name him to the Court.

In 2018, Kennedy made a seemingly corrupt deal with the Trump administration, agreeing to retire so long as Trump named Kennedy’s former clerk Brett Kavanaugh as his successor. Justice Kavanaugh has inherited Kennedy’s role as the swing justice, except the Court has lurched further to the right. Kavanaugh indicated he did not share Kennedy’s view of the majority opinion in Massachusetts when he heard the predecessor to the West Virginia case while on the D.C. Circuit. During those arguments, Kavanaugh suggested he was open to a broader challenge to the administrative state via the “major questions” exception to Chevron.

Rolling Back The Clock

Unfortunately, the leak in early May of a draft Dobbs v. Jackson Women’s Health Organization opinion by Justice Alito overturning Roe v. Wade and Planned Parenthood v. Casey was long expected. But the sweeping and striding nature of Alito’s opinion is being interpreted as a terrifying indication that the hard-right extremists who currently comprise the Supreme Court supermajority— five of whom were appointed by presidents who lost the popular vote—intend to do exactly what the Federalist Society sent them there to do. This means that the Dobbs decision could eventually lead to the overturning of precedents from the Warren, Rehnquist, and even Roberts Court eras enshrining marriage equality, LGBTQ rights, and access to contraception.

But really, the ramifications of the Dobbs decision are even more profound. Alito and his peers have signaled hostility toward jurisprudence that dates back even further in the Court’s history, and their rulings threaten to dismantle what’s left of the New Deal administrative state and take us back to a Gilded Age framework of totally unfettered corporate excess. Since the West Virginia decision appears to be the first of many potential vehicles for this, even a comparatively narrow ruling restraining the EPA’s power under the “major questions” doctrine must not be overshadowed amidst other controversial Supreme Court decisions that are announced through the end of June.

How to Counteract the Court

Shortly before this session of Congress began, journalist Rachel Cohen laid out a brilliant strategy for how the first branch should respond to our extreme right-wing federal judiciary by passing a series of judicial overrides. Sadly, except in a few rare instances where the House has acted but the Senate has not, this Congress has failed to adopt a judicial override strategy, and has missed a fleeting opportunity to assert itself as the people’s branch by showing that it can do something about judges radically transforming our system of government in dangerous and unpopular ways.

If the Supreme Court’s decision in West Virginia goes as far as justices have signaled that it might, the dire need for a functional and assertive Congress will grow even more urgent in the years to come. In the face of judicial extremism and a neutered administrative state, addressing climate catastrophe will require greater creativity from citizens and elected officials at the federal, state, and local level. As Martin Luther King Jr. wrote from the Birmingham jail, “One has not only a legal but a moral responsibility to obey just laws. Conversely one has a moral responsibility to disobey unjust laws.”

1 SCOTUS’ 1984 ruling in the Chevron case emerged from a deregulatory move by Neil Gorsuch’s mother, Anne Gorsuch, who was President Reagan’s first EPA administrator. As EPA chief, Gorsuch slashed the EPA’s budget by 22% and substantially weakened clean air and water standards before resigning after it was revealed she’d deprived California of toxic waste cleanup funds in an attempt to hurt Jerry Brown’s Senate campaign. Gorsuch Burford had gotten her start in politics through an anti-environmental Colorado state legislative caucus known as the “Crazies,” and had been mentored by right-wing energy and beer tycoon James Coors; her son Neil later followed a similar path, climbing the ranks of the legal world with guidance and support from Colorado oil and gas billionaire Philip Anschutz.

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