Right now, there is a lot of attention on the Supreme Court. This is due to Justice Breyers retirement as well as Judge Ketanji Jacksons nomination. The Court has been exerting its influence over voting rights, reproductive rights and, most recently COVID regulations. Now, the Supreme Court has arrived in town as a player within the environmental movement. And it is not on our team.
We at Earthjustice are fighting more than ever in our courts. For them, too.
I won’t sugarcoat it. This Supreme Court session reveals the conservative majority’s deregulatory agenda: It wants to limit federal governments power and authority to implement its mandates under the law. With six votes, the Court is able to do this.
The Court’s January ruling that OSHA’s mandate for vaccination and mask-and-test was blocked by OSHA was the latest example. The Court informed us that EverywhereJudges should demand clear statements from Congress authorizing any government agency to act in a manner that could have significant economic and political consequences.
In simpler terms, conservative bloc believes that when agencies attempt to regulate in ways which have large economic impacts, judges should go back to Congress and read Congress laws less narrowly than they would otherwise. This is the Court’s major questions doctrine. It is novel because it brings us back to the pre-New Deal era, when the Court had freestanding authority to second-guess economic laws. However, it also contradicts the long-standing demand of right-wing judges that we only focus on the text of our laws.
The Court appears to be ready to apply the major question doctrine in the blockbuster case West Virginia v. EPA. The case concerns EPA’s authority under Clean Air Act to regulate power plant carbon emissions. It was amazing that the Court even considered the case. This case concerns an Obama-era regulation, which has never been and will not be enforced. Therefore, nobody can claim to have been impacted by it. The Court seems to be trying to place an environmental exclamation on the signal it sent with the OSHA ruling. Federal agencies shouldn’t enact regulations that have significant economic or political significance unless the law specifically authorizes such actions.
That’s even worse when you consider the Clean Air Act. The worse news is that virtually every environmental regulation has major economic consequences for industry. This is the problem: letting industries have major environmental impacts on us is an alternative. The Court’s new approach will cause havoc in the world.
The Court insists now that the Congress of 1970 must be very specific about what air pollution problems it wants the EPA to address today, in 2022, as well as how. However, members of Congress are not scientists and don’t legislate in this way. Instead, they empower the agencies to create flexible, science based regulatory programs that can take in new science, changing information, and emerging technology. The Congress of 1970 couldn’t have predicted the amount of science, technology, and urgency that we would face in 2022. Instead, it used broad language to give agencies broad authority. This 50-year-old restriction allows a right-wing court to invalidate decisions made by a bipartisan Congress. This is not good.
The CPP case was argued a few weeks ago. The signals confirmed our fears that the court is running an anti-regulation campaign. (You can listen to some of our commentary about it HereAnd Here.) They also reminded us that Judge Ketanji Brown Jackson must be as aware as her former boss Justice Breyer of the dangers of a politically-oriented judiciary. Future Justices and she need to be guided by science and facts, not power hungry or fringe theory. They need to restore credibility to the highest court of our nation.
What can you do? Tell everyone in your circle about this case. The Supreme Court is the most important court.
