And Not in a Good Way, Either
Among the looming, end-of-year Supreme Court decisions is one that has the power to say the federal government shouldn’t do much governing.
As outlined by The New York Times and E&E Climate Wire, the pending decision about environmental regulation focuses on limiting the government’s authority to reduce carbon dioxide emissions from power plants. Those are emissions that is widely recognized as a dangerous component driving carbon heating for the planet.
Of course, this seems a bad time for this or similar challenges to efforts to reduce global warming. Every sign we get from scientists these days – a continuing spate of national and international studies as well as observable weather patterns – insists that the pace of problems from the environment is quickening.
Once again, however, what seems worse is the basic reasoning of the increasingly insistent conservative majority in the U.S. Supreme Court to find legal ways to trim the whole idea of government through agencies that specialize in enforcing the law, and figuring out what is falling between the lines of the broad statutes that Congress passes.
The emerging alternative says to stop doing so – that it is Congress, not federal agencies, that must get into the regulatory minutia of setting specific environmental caps or rules within which companies can operate.
But we know that Congress is stuck and can’t pass almost anything of substance, that it lacks the knowledge to deal with areas of science, technology, medicine, pharmaceuticals, education and dozens of other specifics. For decades, Congress has forgone environmental regulations to let the Environmental Protection Agency handle them.
The effect of such a ruling will be to hasten the ability of the government to govern.
The Aim: Weaker Regulation
This case is called West Virginia v. Environmental Protection Agency, and as The Times described it, is one of several coordinated cases brought by a coalition of Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to weaken environmental regulation.
Indeed, The Times notes that the funders are the same who paid into campaigns to boost the chances of the same, specific conservative justices who would form the majority in this case.
This case involves a sweeping Obama-era power plant climate rule and the Trump administration’s efforts to replace it with a much narrower regulation. The intent was to push the electric power industry away from fossil fuels and toward greener sources under a seldom-used section of the 1970 Clean Air Act. Under Biden, the EPA has embarked on writing its own version of the rule.
As Jeff Landry, Louisiana attorney general, explained, the states want to limit the administrative state and federal agencies that set rules affecting the economy. Other cases the group is bringing challenge rules about producing or allowing leaks of greenhouse gases or mileage requirements or preserving wetlands.
Extend the same reasoning, and the Centers for Disease Control would be restrained from issuing mandates or advice about covid or measles, the Federal Drug Administration would have less say over testing the safety of prescription drugs, or the Federal Aviation Administration presumably couldn’t tell airlines that they are flying unsafe planes.
The conservative dream is a self-governing marketplace that sees an advantage in keeping things safe, fair and that bows to consumer demands. It’s a dream of benevolent businesses that put service and responsibility over profit – in other words, a dream that definitely does not describe how our everyday world works,
It was government intervention that was required in the recent infant formula safety problems, for example, and it is unclear that a reported 273 accidents in self-driving cars this year is prompting Tesla or other manufacturers to recall their own cars. Nor is consumer outrage driving corporate retail oil prices down or stopping rent increases that have no relationship to transportation costs.
Regulation may be the government balancing vote for consumers, but the expectation among legal experts is that the Supreme Court will rule for the states in this case, as it has in other recent environmental regulation cases.
The question is how the decision will be written – narrowly about this specific emissions case or more broadly to invite a general weaking of Washington’s powers to oversee wider areas of American life.
What makes environmental operating rules different from drug pricing or financial regulations, for example?
The current display of members of Congress to spend their time and effort calling out space lasers and pushing conspiracy theories rather than getting into the weeds to reduce the price at the gas pumps illustrates the problem.
These are not people who do the work to get to real problems, or, they are forced for the sake of political compromise to write legislation in generalities rather than with specific regulations that may not be adjustable as needed.
In its recent decisions, the Supreme Court has invoked similar principles repeatedly during the past year to strike down a series of Biden administration responses to the coronavirus pandemic.
A conservative majority in the Supreme Court is ready to tell us what its dream government should be. We should be skeptical that the court majority is correct.