It looks like the Republicans on the Supreme Court are preparing to set our planet on fire.
Old readers of my work and listeners of my program know that the Supreme Court has seized extraordinary powers that the framers of the Constitution never intended. There are summaries over here And the over herefor example.
This would paralyze virtually every regulatory agency in Washington, DC, from the Environmental Protection Agency to the Federal Communications Commission to the Occupational Safety and Health Administration.
This is not an opinion that is unique to me or my book The hidden history of the Supreme Court and the betrayal of AmericaTwo Harvard law professors this week only Wrote an article on Atlantic Ocean Pretty much the same arguments.
And now it appears that Republicans in court are about to use this illegitimate power – on behalf of the fossil fuel industry – to cripple America’s ability to meet the challenge of climate change.
It’s a strange concept and a fig leaf to mask the fossil fuel industry’s desire to end government regulations and eliminate green energy subsidies. To get there, they want to turn the regulatory agency rule-making process upside down.
Here’s how environmental law works (in a very simplified form):
Congress passes a law which states, for example, that the Environmental Protection Agency must limit the damage carbon dioxide in the environment causes to the planet. Congress (the branch of government in Article I of the Constitution) determines the general purpose of the legislation, but the executive branch (Article II) bears the responsibility for its implementation.
Environmental Protection Agency, part of that executive and responding to both the law and the president, Then, meetings of expert committees were held. They spend a year or more making a thorough and deep dive into the science, coming up with dozens or even hundreds of suggestions for reducing carbon dioxide in the atmosphere, from rules about how much cars can expel to drilling and refining operations that might cause a second leak. Carbon dioxide or methane (which decomposes into carbon dioxide), etc.
The experts’ suggestions are then presented to a panel of rule-making bureaucrats and hired rule-making experts For the EPA to decide what the standards should be. They consider the current capabilities of the industry and the costs versus benefits of the various bases, among others.
After they came up with those temporary regulations, they Submit it for public review and hearing. When this process is done and the rules are approved, they Make it into official EPA rules, publish, enforce, and CO2 emissions start to drop.
This is how it works, a process that is simply in line with common sense, like the Supreme Court Ruling 1984. It’s been this way for a century or more.
Congress passes laws that enable regulators to solve problems, agencies figure out how to put rules into practice, and solutions are implemented by agencies.
Now comes a group of right-wing Supreme Court justices including Neil Gorsuch, his mother I tried to destroy it The Environmental Protection Agency when she ran it (and had to resign in disgrace) during the Reagan administration.
In addition to Gorsuch, the court also has Amy Coney Barrett who The father was a lawyer Shell Oil for decades, John Roberts, Samuel Alito, and Brett Kavanaugh who were all in court because Network support Funded by fossil fuel billionaires and their industry (among others).
The “novelistic” argument that a group of Republican state attorneys general is coming forward, and that Neil Gorsuch had already upheld it in a lower court ruling prior to his appointment to the court, is impressive. It could end most preventive government regulations in America.
Essentially, they argue, the EPA (and any other regulatory agency) cannot perform all of the above steps: rather, it must require such detailed and time-consuming analysis of a problem, the development of specific solutions, and the writing of specific rules as they say, of by Congress itself.
In other words, Gorsuch says, Congress itself – not the Environmental Protection Agency – should evaluate the science and then write the rules.
As if Congress had the time and staff. As if the Congress was full of scientific experts. As if the Republicans in the pockets of the fossil fuel rich wouldn’t block any Congressional action even if it did.
Back in 1984, the Supreme Court concluded, in Chevron USA v. Natural Resources Defense Council The decision, that it only makes sense for Congress to set goals and that regulatory agencies, staffed with scientists and experts, will do the science and write the rules.
This doctrine is calledRespect Chevron.” Scotos said the courts should refer regulators, as they are the experienced ones.
But Gorsuch argued, essentially, that rule-making—even the detailed scientific details of the rules—should be done by Congress rather than the EPA, and that agencies like the EPA should play the cops on the beat, and enforce those rules.
He wants to turn Chevron vs. Natural Resources Defense Council.
This would paralyze virtually every regulatory agency in Washington, DC, from the Environmental Protection Agency to the Federal Communications Commission to the Occupational Safety and Health Administration. Every rule issued by any of them (and dozens of other agencies) can be disposed of under a direct judicial challenge, and unless Congress specifically replaces those rules by passing new laws themselves, those rules will not exist.
The chaos hardly begins to determine the outcome. This is exactly what Steve Bannon said to the Trump administration Planning To do the following: “Dismantle the administrative state.”
The United States (with 4 percent of the world’s population) has produced more greenhouse gases than any other country and remains one of the planet’s biggest emitters.
Blowing up the EPA’s CO2 bases would guarantee future profits for the fossil fuel industry – the group that partially funded the rise to court of Gorsuch, Roberts, Barrett, Alito and Kavanaugh – and also accelerate the destruction of our atmosphere and life on Earth’s supports.
I bet if they would do this (file The New York Times This week it is likely) in West Virginia v. Environmental Protection Agency Judgment expected any day, And the That they would relinquish the decision on the same day that an abortion or carrying a gun was judged, ensuring that most people would never hear about it.
Watch this decision: it probably won’t get meaningful media coverage because it looks bureaucratic and administrative (and may be buried in abortion or gun control news).
In fact, if all goes as expected now, she will conjure up the last lines of TS Eliot’s poem hollow men:
This is the dead land
This is the land of cacti
Here are the stone photos
bred here receive
The prayer of the hand of the dead
Under the twinkle of a fading star. …
This is how the world ends
This is how the world ends
This is how the world ends
Not with a bang but a growl.
This article was first published in The Hartmann Report.