The Supreme Court Takes On Climate Change. Be Afraid. Conservative justices are taking aim at all regulations, not just environmental ones.

AuthorShane, Peter M.

On February 28, the U.S. Supreme Court heard West Virginia v. Environmental Protection Agency. In addition to potentially ominous implications for American climate change policy, this environmental case may also give what The New York Times's Jesse Wegman has aptly called the Court's "turbocharged right-wing supermajority" a chance to rework the allocation of power among Congress, the judiciary, and the executive branch. In the near term, a loss for the EPA would likely sabotage President Joe Biden's vow to slash U.S. greenhouse gas emissions dramatically by 2030. Over time, a hard-right decision could cripple public interest regulation of a kind that has so successfully advanced American health, safety, and prosperity since the New Deal. The conservative justices appear to be pursuing their aims without regard to customary norms of judicial self-discipline. To fully understand their current campaign, however, we need to follow two stories--one about the procedural handling of the case, and the other about the majority's dubious constitutional vision.

First, the procedure story. In immediate terms, West Virginia v. EPA arises out of the agency's efforts to limit carbon emissions by fossil fuel-burning electrical power plants. In 2014, the Obama administration proposed--and then in 2015 issued--the Clean Power Plan (CPP), accurately described by the White House as setting "the first-ever national standards to limit carbon pollution from power plants." Together with other administration policies, the plan aimed "to reduce premature deaths from power plant emissions by nearly go percent in 2030 compared to 2005 and decrease the pollutants that contribute to the soot and smog and can lead to more asthma attacks in kids by more than 70 percent." The White House hoped that the plan would "avoid up to 3,600 premature deaths, lead to 90,000 fewer asthma attacks in children, and prevent 300,000 missed work and school days."

In short order, 27 states, 24 trade associations, 37 rural electric co-ops, and three labor unions sued in the U.S. Court of Appeals for the D.C. Circuit to block the CPP. Remarkably, however, some of these plaintiffs also asked for VIP treatment from the Supreme Court. They asked the justices to step in and block implementation of the plan even before a challenge could be argued, much less decided, in a lower court. The Court's then-five-member conservative majority granted the application over the dissenting votes of the four liberal justices.

As the law professor Steven Ferrey has noted, "No party in the matter was able to point to any previous instance" of such a ruling. Nonetheless, the Court granted the stay as part of its so-called shadow docket of procedural rulings--decisions made without full briefing or oral argument--and the majority provided no explanation for its unique stay. Without any public explanation, an unprecedented stay was imposed until the Court of Appeals ruled, and potentially beyond: If a losing party in the Court of Appeals successfully petitioned for further Supreme Court review, the stay would remain in place until the Court also rendered its final judgment.

The new Trump administration was destined, upon taking office in 2017, to imperil Barack Obama's ambitious climate change policies. Just over two months into his term, Donald Trump issued an executive order directing the EPA to review the CPP and, "if appropriate," "suspend, revise, or rescind" the rule that the Supreme Court had preemptively blocked. The D.C. Circuit suspended the lawsuit against the CPP until the EPA could conclude its deliberations. Those deliberations took more than two years, during which Trump's first EPA administrator, Scott Pruitt, was replaced by Andrew Wheeler, a former coal lobbyist. The EPA repealed the CPP on June 19, 2019. The agency said it was scrapping the plan because, its lawyers claimed, the Clean Air Act (CAA) never authorized its regulatory strategy. In place of the CPP, the Trump-era EPA proposed the much less ambitious Affordable Clean Energy (ACE) rule.

After Biden took office, the EPA informed the Court of Appeals that it would not defend Trump's ACE rule. It also announced that it would not seek to reinstate the 2015 CPP. That should have been the end of the case: With no ACE being enforced, and no new antipollution rule proposed, what was left for a court to review? Yet with its now-expanded...

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