In a political act poorly disguised as a legal opinion, the ultra-conservative majority of the Supreme Court issued a decision that makes a hard problem even harder to solve by fashioning out of thin air a new requirement for Congress to protect the environment.
The majority’s reasoning in West Virginia vs. Environmental Protection Agency (EPA) is so fundamentally flawed that there is no other way to see the opinion than as a blatant exercise of political power. This would play as farce but for the lurking tragedy from an ultra-conservative majority showing their disdain for the administrative state that protects far more than the environment — and, indeed, for their utter disregard for the rule of law.
Justice Elena Kagan’s dissent dissects the majority’s attempt at legal reasoning. For starters, the court did not have to take the case. The Clean Power Plan that was targeted had long since been abandoned, and market forces including cheaper renewable energy had already done more to protect the climate than the abandoned rule was projected to do. Agreeing to hear a case about a regulation that no longer exists is itself an extraordinary display of judicial activism, as Harvard Law Professor Richard Lazarus noted in The Washington Post.
But the majority is just getting started. Kagan describes blow by blow how they abandoned the basic rules of statutory construction and created a new requirement for Congress to “magically appear”: if an issue like protecting our air is really important, Congress must say “we really mean what we’re saying.”
Kagan’s conclusion sums up the ultra-conservative position, “Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”
Some 30 years ago, Congress would have been able to correct the court and explain that they were indeed comfortable saying what they mean, including about protecting the environment. But with Congress gridlocked, the ultra-conservative majority of the court have no one to check their usurpation of power.
It is not clear how much the decision will hamstring EPA, as the agency has ample other authority to protect the climate and safeguard public health and welfare. Yet, it’s possible — indeed, likely — that the ultra-conservative majority will do the same thing in the next case challenging EPA’s authority to regulate climate pollutants: torture legal logic sufficiently to justify the political outcome it wants.
The ultra-conservatives on the court ruled that government agencies like EPA have grown too big and place too many restrictions on business. And they are just getting started exercising their usurped political power to tame the administrative state. Today, there are taking away one strategy EPA previously proposed to regulate climate; tomorrow they could restrict EPA’s ability to ensure clean water and clean air.
Meanwhile, the demand for strong climate governance is coming from the majority of U.S. citizens who are already suffering from extreme weather events — including floods, fires, droughts and heat waves — that would not be possible absent climate change. The demand for climate governance is not going away. It will continue to grow, and it will find other avenues to flow through, including at the state and local level.
Those of us dedicated to protecting the climate will continue to fight the climate fight. We will continue to gain ground. But we have to accept that the ultra-conservative majority on the Supreme Court are not going to help.
While conservatives think they’ve got a victory from this court, they should beware. Because when respect for law is lost and the rule of law eroded, all of civilization suffers. Law is the architecture for our society, and our civilization: losing it will come back to bite the conservatives, too. It also will hurt the business community, where more and more leaders and their employees, from large retailers to sustainability technology companies, know that their survival depends on fast, aggressive action this decade to protect the climate.
Those fighting to protect the climate will find other ways to succeed. As the great songwriter and poet Leonard Cohen put it, “There is a crack, a crack in everything. That’s how the light gets in.”
Durwood Zaelke is president of the Institute for Governance & Sustainable Development (IGSD) in Washington, D.C. and Paris, as well as adjunct professor at the University of California, Santa Barbara. He is co-author of “Cut Super Climate Pollutants Now!: The Ozone Treaty’s Urgent Lessons for Speeding Up Climate Action” (2021) and co-author of “International Environmental Law & Policy” (6th ed., with Hunter & Salzman). He has taught at various law schools, including Yale, Duke and American University, as well as in graduate programs at Johns Hopkins and University of California, Santa Barbara.
This piece has been updated due to a formatting issue.