Supreme Negligence

Source: Supreme Negligence   Amy Westervelt

…The case the court chose to hear, West Virginia v. Environmental Protection Agency (EPA), involved a policy that had not been implemented, nor replaced with anything similar. But just in case the administration was even thinking about it, the Supreme Court decided to weigh in. It’s an unprecedented move, and one that restricts the federal agency tasked with environmental protection from following science. That fact was further underscored in Justice Kagan’s dissent, which took the case out of the weeds of the particular Clean Air Act section in question and placed it back into reality: the science is unambiguous on climate, and the impacts will be unprecedented, surely now is not the time to quibble about whether “clean air” explicitly means maintaining a livable atmosphere?

While nowhere near as sweeping and terrible a ruling some of us were bracing for, the decision—written for the 6-3 majority by Chief Justice John Roberts—is still deeply troubling…

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Despite the conservative justices supposed allegiance to a “textual” or “originalist” view of the Constitution, their use of “major questions” has zero roots in precedence, history, or the Constitution itself. It’s a relatively modern creation that the conservative bench has suddenly been referencing a lot as an excuse to weigh in on virtually anything (in this session alone, they used it to strike down vaccine mandates, eviction moratoriums, and now emissions regulations). 

What the reference here makes very clear is that the justices plan to keep invoking “major questions” doctrine in their effort to dismantle the “administrative state,” which includes every federal agency that drafts and enforces regulations based on laws passed by Congress. The idea from hardcore federalists is that you don’t need agencies when you have state governments ready and willing to interpret and enforce Congress’s will. In fact, pushing all these regulations on to the states is a disastrous approach for most environmental issues: what happens when a power plant in one state dumps coal ash into a water source that’s then carried to another state, for example? Pollution doesn’t observe borders. And while some state and local governments have been major leaders on climate policy, that progress has often been enabled, incentivized, and guided by federal policy…