"An earthquake that reorders US law"
The rightwing-dominated Supreme Court's assault on environmental regulations continues.
Eek. The Supreme Court has done it again.
From Grist:
The Supreme Court on Friday threw into question the future of climate and environmental regulation in the United States, scrapping a decades-old legal precedent that gave federal agencies leeway to interpret laws according to their expertise and scientific evidence. The impact of the decision to scrap the so-called Chevron deference will take years to become clear, but it could allow for far more legal challenges against regulations by agencies like the EPA and the Department of the Interior that have a huge role in the climate fight.
Federal courts have long deferred to federal agencies to interpret laws that are unclear and need further clarification. In 1984, a shorthanded Supreme Court ruled in a unanimous decision that federal agencies have the final say on ambiguous policies, which allowed those agencies broad authority to make decisions without fear of judicial override.
In Supreme Court filings, the Biden administration said that overruling the Chevron deference would be a “convulsive shock to the legal system.”
Proactive meddling
This decision is just the latest in a number of cases decided by the Supreme Court that tilts power away from the public interest and towards powerful, profiteering polluters. In three other cases, the court handed down judgments “to stop environmental regulations before they were decided by lower courts or even before they were implemented by the executive branch”—the kind of proactive meddling which New York Times reporter Coral Davenport notes “has little in the way of precedent. Usually, the Supreme Court is the last venue to hear a case, after arguments have been made and opinions have been rendered by lower courts.”
Davenport summarizes the three earlier cases as follows (one of which was handed down just the day before Chevron was overturned):
On Thursday, the court said the E.P.A. could not limit smokestack pollution that blows across state borders under a measure known as the “good neighbor rule.” In that case, the court took the surprising step of weighing in while litigation was still pending at the United States Court of Appeals for the District of Columbia Circuit.
The court also acted in an unusually preliminary fashion last year when it struck down a proposed E.P.A. rule known as Waters of the United States that was designed to protect millions of acres of wetlands from pollution, acting before the regulation had even been made final.
Similarly, in a 2022 challenge to an E.P.A. climate proposal known as the Clean Power Plan, the court sharply limited the agency’s ability to regulate greenhouse gas emissions from power plants, even though that rule had not yet taken effect.
“Worse governance, more arbitrary decisions”
Davenport describes this as “a multiyear strategy to use the judicial system to influence environmental policy,” noting that:
Many of the petitioners on the cases overlap, including the Republican attorneys general from at least 18 states, the National Mining Association, the American Petroleum Institute and the U.S. Chamber of Commerce.
The lead plaintiff on last year’s wetlands protection case, the Pacific Legal Foundation, is part of the network of conservative research organizations that has received funding from the billionaire Charles Koch, who is chairman of the petrochemical company Koch Industries and a champion of anti-regulatory causes.
On Friday, Rep. Pramila Jayapal (D-Wash.) said the ruling was “the outcome of a multi-decade crusade by big business and right-wing extremists to gut federal agencies tasked with protecting Americans' health and safety to instead benefit corporations aiming to dismantle regulations and boost their profits.”
Vox’s legal expert Ian Millhiser describes the ruling as “an earthquake that reorders US law, and that transfers a simply astonishing amount of authority away from democratically accountable officials and to a Republican judiciary.” He predicts it will “lead to worse governance, more arbitrary decisions, and even more contentious judicial confirmations because so much now turns on which party controls the courts.”
What can be done?
The Supreme Court’s slash-and-burn approach to environmental rule—making is dismaying, but it’s not the last word.
Restoring the public interest to the heart of environmental rule-making won’t be a simple, quick or easy process. But, with perseverance it’s certainly possible!
Firstly, the court itself desperately needs to be reformed (easier said than done, I know!). Here are 10 ideas from Vox on how to go about that.
Secondly, Congress will have to step up too. It ought to pass1 Rep. Pramila Jayapal’s Stop Corporate Capture Act, which, as she says, “codifies Chevron deference, strengthens the federal-agency rulemaking process, and ensures that rulemaking is guided by the public interest–not what's good for wealthy corporations.” Common Dreams notes that the bill would also:
Require anyone submitting a study as part of a comment period on a regulation to disclose who funded it;
Only allow federal agencies to take part in the negotiated rulemaking process;
Create an Office of the Public Advocate to increase public participation in the process of crafting regulations;
Make public companies that knowingly lie in the comment period on a proposed regulation liable for a fine of at least $250,000 for a first offense and at least $1 million for a second; and
Empower agencies to reissue rules that were rescinded under the Congressional Review Act.
Sen. Ed Markey (D-Mass.) has also announced he will be introducing legislation to restore the rule-making abilities that federal regulators have enjoyed for the last 40 years.
Further reading
“Supreme Court Overturns Chevron Doctrine: What it Means for Climate Change Policy” (Inside Climate News): While the impact of this ruling is far from certain, this article does an excellent job at looking at the upcoming climate-related cases it could affect
“‘Gift to Corporate Greed’: Dire Warnings as Supreme Court Scraps Chevron Doctrine” (Common Dreams)
“The Conservative Attack on Federal Agency Power” (Dēmos)
“A String of Supreme Court Decisions Hits Hard at Environmental Rules” (New York Times): The piece by Coral Devonport quoted from above. Thoughtful, nuanced and clearly explained.
“The Supreme Court just made a massive power grab it will come to regret” (Vox): Ian Millhiser’s must-read analysis of the ruling points argues that the Supreme Court has now made itself “responsible for resolving thousands of low-stakes policy questions, which often cannot be resolved simply by reading the law’s naked text.” He says the justices “can look forward to missing their children’s basketball games, skipping out on date nights with their spouses, and not really doing much of anything at all besides deciding the crushing weight of cases that are about to land on their desks.”
“Progressive Dems Call for Codifying Chevron After 'Dangerous' Supreme Court Ruling” (Common Dreams)
Check out The Supreme Transparency Project which “aims to demonstrate the web of corrupt ties between justices, their billionaire and powerful pals, and the organizations who file amicus briefs before the court”
Obviously until such time as there is a majority of Democrats in the House, passing this will be impossible. This is yet another reason why the November election is so important.