Move over, Joe Manchin. There’s a new climate villain of the month in Washington, DC.
On Friday, the Supreme Court said it would hear a case that could limit the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. There are a lot of moving pieces here and legalese. But the big picture is this: The suit could be very, very bad for the U.S.’s ability to do anything whatsoever about climate change.
The timeline here is a little complex, but essentially, the challenge the court agreed to hear was actually brought against a rule that’s technically not in use. The EPA is legally obligated to regulate carbon emissions under the Clean Air Act after a landmark 2007 Supreme Court Decision. The Obama administration crafted the Clean Power Plan in 2016 to do just that only for it to be sent into legal limbo by the court (coincidentally, in one of Antonin Scalia’s last acts on this Earth, which seems like a fittingly evil exit). After Trump came into office, his administration drafted a proposed replacement for the Clean Power Plan, which, to no one’s surprise, was super industry-friendly (of course).
A court in January, in turn, threw out Trump’s proposed rule. A coalition of 18 attorneys general from fossil fuel-friendly states challenged that decision. The roster of states and groups on this petition reads like a coal baron’s wet dream: The challenge is led by West Virginia Attorney General Patrick Morrissey, who complained that the ruling would give the EPA “virtually unlimited authority to regulate wide swaths of everyday life with rules that would devastate coal mining, increase energy costs and eliminate countless jobs.” Their appeal is what the Supreme Court has decided, somehow, is worth hearing.
“It’s a huge and a big surprise,” Jeff Holmstead, a former EPA assistant administrator and now a partner at Bracewell LLP, told Bloomberg, who went on to note that the case will “almost certainly prevent the Biden administration from moving forward with a new rule to regulate carbon emissions from the power sector. They’ll have to wait to see what the Supreme Court says.”
The Court agreed to hear from the 18 state petitioners as well as corporate, coal-loving supporters of the challenge that include the Lignite Coal Council, North American Coal Corporation, and Westmoreland Mining. At issue are fundamental questions about what the EPA is allowed to do with regards to regulating power plants. This could, in essence, hamstring Biden’s ability to do anything about climate change through executive power while Congress also twiddles its thumbs thanks to Republicans’ and Sen. Joe Manchin’s opposition to needed climate policies.
Richard Revesz, the head of New York University’s Institute for Policy Integrity, said in a statement that the issues the case raises are “at odds with decades of regulatory practice under administrations of both parties. ... Petitioners’ claims lack merit, as this case will hopefully reveal.”
Some lawyers have pointed out that the timing of this is especially ominous. The EPA currently doesn’t have any specific rules governing how it regulates power plants. After Trump’s plan got tossed, the Biden administration has said it’s writing new rules, but nothing has been introduced yet for this appeal to even challenge. The fact that the Supreme Court is agreeing to hear this appeal when there are no EPA rules even in place could just be a show of force for them to circumvent the EPA’s power even more aggressively. The announcement comes as President Biden prepares to head to the UN climate change conference in Glasgow, where he’s already going to have to defend Congress’s embarrassing performance on climate to the world stage. Now, it appears, he’ll have to answer questions about the Supreme Court’s decision, too.
“It’s deeply disturbing to see sufficient votes on the Supreme Court to launch this transparently political attack on Biden’s climate authority as the president heads to Glasgow,” Kassie Siegel, the Center for Biological Diversity’s Climate Law Institute director, said in an emailed statement. “The timing of this announcement is a hammer blow to the already fractured reputation of America’s highest court, whose radical right wing now seems to care nothing about either legal precedent or our planet’s future.”
Indeed, the court is currently packed with conservative justices who have made their views about propping up corporate interests (while fucking over human rights) very clear. The newest justice, Amy Coney Barrett, has seemed to flirt with light climate denial when asked about the science, saying during her 2020 confirmation hearing that she doesn’t “have firm views on climate change” (whatever the hell that means). Her father was also a lawyer for Shell and the American Petroleum Institute, the latter of which came out against Obama’s Clean Power Plan. The EPA’s ability to regulate greenhouse gas emissions will have to navigate the conservative gauntlet of the court.
Even though the decision guarantees there will be some kind of ruling on the case, there’s still a slim chance that there could be outcomes that wouldn’t be totally horrific. The Supreme Court could kick the case aside on procedural grounds. But it’s important to note that this is a great time for people who want to gut environmental protections to have a big case heard by SCOTUS given the nakedly conservative, corporate-friendly bent of its majority.
Happy Friday, I guess.
Update, 10/30/21, 11:40 a.m. ET: This post has been updated with more comments and reactions to the Supreme Court’s decision.