Jul 3, 2022 Hot Take

Battle Supreme

By Amy Westervelt

This week, the U.S. Supreme Court preemptively ruled that the Biden administration can’t enact the Clean Power Plan—or anything else that would force a shift to lower-emission energy sources—without approval from Congress.

You read that correctly: preemptively ruled.

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.

First, the “good” news: It does not restrict the EPA from regulating greenhouse gas emissions in general. Nor does it restrict the EPA from regulating the emissions of existing power plants. It does not offer a broad advisory on how the Clean Air Act may or may not be used with respect to CO2 emissions (and yes, there are other sections of the Clean Air Act that could apply; more on that in a minute). In one part, Roberts even seems to suggest that the Department of Energy take up the work of shifting power generation, leaving the EPA to handle only emissions.

In general, the ruling focuses rather narrowly on Section 111D of the Clean Air Act, and whether it allows the EPA to regulate beyond the fence line of each individual power plant. Roberts also called out the Clean Power Plan as an attempt to create a cap-and-trade system for carbon without Congress explicitly authorizing such a thing.

While a lot of folks in the climate space expected this case to overturn the Massachusetts v EPA verdict, which authorized the EPA to regulate greenhouse gas emissions, Roberts never mentions it. Instead, though, he references something more chilling: “Under our precedents, this is a major questions case.”

If you’re unfamiliar, ‘major questions’ refers to a completely judge-created doctrine that allows Supreme Court justices to weigh in whenever they feel a regulatory agency has done something that has an “extraordinary” impact on economics or politics. It’s the reverse of the “Chevron deference,” another phrase that came up a lot in discussion of this case, which holds that in absence of explicit direction from Congress on how a regulatory agency should interpret and implement a given law, it’s up to the agency’s discretion and the court should not impose its own interpretation. 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.

So, where does this leave us?

The West Virginia v EPA ruling is about the least-bad ruling we could have expected, but it’s a harbinger of worse to come, especially once the court sinks its teeth into a case without all the bizarre twists and turns of this one. A case focused on the Clean Water Act is coming up next session, for example. It’s also important to note that West Virginia v EPA didn’t come from some poor, cash-strapped coal producer who was worried about how the Clean Power Plan would affect their business. It was a case crafted very strategically by the Republican Attorneys General Association. At the time that the case was filed, Scott Pruitt was Attorney General of Oklahoma and led RAGA. He met with failing coal producers in early 2015, then helped coordinate and file the case in November 2015, right around the time those very same coal producers made large contributions to the RAGA coffers. Then, as Trump’s EPA head, Pruitt drafted a proposal in early 2017 to repeal the Clean Power Plan. In that proposal, he introduced the idea that the Clean Power Plan represented a “major question” that ought to be answered by Congress, not a regulatory agency. It’s the very same argument Chief Justice Roberts repeated this week in his defense of the court taking up this case.

RAGA is behind a significant number of the constitutional challenges currently before the court, including the one that took down Roe. Funded by various industries that AGs are supposed to, you know, regulate—including the fossil fuel industry—they look for ways to file cases that will help restructure the government in a way that benefits corporations.

Until the court does its worst, the EPA still has some options. Even within the Clean Air Act itself, for example, Section 115 requires EPA to regulate international air pollutants upon receipt of “reports, surveys or studies” from an international agency that indicate that air pollutants emitted in the U.S. could “reasonably be anticipated to endanger public health or welfare in a foreign country.” The Intergovernmental Panel on Climate Change (IPCC) reports and their increasingly urgent warnings would certainly seem to qualify.

Outside the Clean Air Act, the Toxic Substances Control Act also provides some options. Roberts wrote in his West Virginia v EPA opinion that the EPA is no expert on energy production, and this its oversight of the power sector should be limited. It is the government’s expert on chemicals though, and greenhouse gasses could certainly be considered toxic substances. A petition filed with the EPA earlier this month asked the agency to make a determination about the risk greenhouse gasses pose to human health and the environment, and then to commence rulemaking to mitigate that risk. Unlike the Clean Air Act, TSCA includes very explicit language about the authority it grants to the EPA, and could even get around this thorny “major questions” issue given its explicit language around the agency ignoring political or economic impacts when rulemaking.

"This sort of problem is exactly the thing TSCA was designed for," explained former EPA scientist Donn Viviani, one of the recent petitioners. (The others include climate scientist Dr. James Hansen, and climate accountability expert Richard Heede.) "Congress knew that there were problems out there that a single program couldn't handle and that we needed something more expansive. It was designed to take care of things that the other laws weren't properly taking care of. And if you look back at the history of climate, it's quite clear that none of the other laws are taking care of this.”

The ruling also removes any doubt who we’re dealing with; it confirms that this court will absolutely try to kneecap attempts to address climate change. Which doesn’t mean that we throw up our hands in despair so much as that we prepare for the literal fight of our lives. If you need to despair for a bit, take that time, but please, come back ready to fight —and organize and vote this November. Because actually the easiest way to curb SCOTUS’s power is a Congress that will pass climate legislation.

P.S. If you haven’t listened to this week’s podcast episode about the case and the rest of the SCOTUS madness, fix that today!

They Literally Set the Ocean on Fire, Y’all

By Mary Annaise Heglar

The past six or so years have been filled with so much hard-to-believe bullshit, it’s felt like a surrealist nightmare. And I’m learning that “hard to believe” can quickly turn into “hard to remember,” which is why it’s important that we take the time to commemorate the absurd—not only so that we don’t forget, but so that the people in power don’t just get away with it.

Why, yes, I am talking about the time Pemex (or Petróleos Mexicanos) set the ocean on fire last summer.

On July 2, 2022, a Pemex-owned pipeline ruptured in the Gulf of Mexico, erupting in a fiery whirlpool that looked like an actual volcano had opened on top of the water. It legit looked like that river of slime scene from Ghostbusters—except it was real and it was the ocean. Though the fire was put out in five hours (according to official reports), there was a quick moment there where we were worried about having a full blown hurricane at the exact same time that the ocean…was on fire.

How, on earth, is deepwater drilling still a thing? And how is Pemex still a company?

What’s wilder than the ocean catching on fire is having the ocean catch on fire and everyone just forgets about it and moves on. It’s bad enough that it happened, worse that nothing changed as a result, but it is utterly unacceptable that it be forgotten. We have control over that last one. So, from whatever social media platform you frequent, take a moment to look up Pemex (here’s Twitter and Instagram) and let them know that you know what they did last summer.

West Virginia Wasn’t the Only Climate Decision from the Supreme Court

By Mary Annaise Heglar

So, the Supreme Court has been…kinda in the headlines lately, unleashing all sorts of fresh hell on to the timeline and rolling back rights like hot cakes. I’ll let Amy and her expertise talk about the Big Climate Case for the week, but I wanted to take just a quick moment to talk about one of the less terrible decisions that came out of the highest court in the land: Biden vs. Texas.

In this case, essentially, a judge in Texas ordered that the Biden administration reinstate the Trump-era Remain in Mexico policy that held that any migrants coming to the United States to seek asylum have to either be held in detention or… somewhere that is not in the United States. Thus, “remain in Mexico.” While the Court theoretically sided with the Biden administration, they did so in a way that will effectively leave the case in a constant state of bureaucracy. The decision could be batted up and down from the lower to the higher courts until the foreseeable end of the Biden administration.

Herein lies the danger of letting Trump pack literally all the courts with his appointees.

While all eyes are on West Virginia, I really don’t want the climate crowd to lose track of this case either. Not only because this is about human beings and we should care, but because, as we love to say here at Hot Take, this too is climate change. Between devastating extreme weather events like hurricanes and fires to the more slow-moving events like drought, climate change is one of the biggest drivers of migration all over the world. So many of the migrants who find themselves at our southern borders aren’t even from Latin America. Many are from as far away as Africa and Asia, places where climate change has made it too hot to sweat, let alone grow food.

This is going to get worse and it’s yet another example of the choice we have when it comes to responding to climate change: cruelty or compassion. If we want to go with compassion, we’re going to have to fight for it.

Digest

Rising Temperatures, Rising Tides

Heat Waves Around the World Push People and Nations 'to the Edge' - The New York Times, by Raymond Zhong

Supreme Court Rules For Polluters In West Virginia v EPA, by Molly Taft for Earther

Like a Bird on a Wire That Starts a Wildfire, by Carolyn Wilke for The New York Times

June heat waves smash records across the globe | Grist, by Lina Tran for Grist

The Supreme Court's climate decision came out of a decades-long campaign to kneecap regulation, by Julia Kane for Grist

Yellowstone to Weigh Climate Change Risks When Rebuilding From Flood - The New York Times, by Jim Robbins

Alaska Set Ablaze in Record-Breaking Wildfire Season, by Angely Mercado for Earther

'Bloody' Snow Is Another Ominous Signal of Climate Change, by Angely Mercado for Earther

Heat Kills Thousands of Cows in Kansas, by Molly Taft for Earther

The Court vs. the Climate - The New York Times, by David Leonhardt