opinion | Supreme Court may restart climate protection efforts

If suspicions persist that conservatives in the Supreme Court are advancing an ideological agenda, it is likely that the next few weeks will comfort them.

Ahead of the summer recess at the end of this month, the court is likely to not only repeal or restrict the constitutional right to abortion and expand gun rights, but also undermine important environmental protection measures.

In my view as an environmental attorney and former writer for Justice Sandra Day O’Connor, the looming case is West Virginia v. Environmental Protection Agency.And the Which has to be decided within weeks. The judges will determine how much power the Environmental Protection Agency has to tackle the climate crisis by regulating greenhouse carbon dioxide emissions from power plants.

The Obama-era statute was never under consideration because governors in the Supreme Court suspended the rule. It will never come into effect because the Biden administration is in the process of being implemented Suggest a new rule. So there is no dispute to resolve it yet, and therefore no “case or controversy” that would support the court’s jurisdiction.

Why does the court go so far as to summon balls and strikes, as Chief Justice John Roberts is not forgotten describe it His role, to take a case arguably he has no jurisdiction to consider? Some conservatives on the court appear eager to help polluting industries by undermining the agencies’ power to regulate in the public interest. More specifically, some judges have They indicated their interest in sharply limiting the EPA’s authority to regulate greenhouse gas emissions in the state of West Virginia by invoking and expanding the doctrine of “key questions”. This principle invites unelected judges to speculate in Congress when legislators grant an agency the power to regulate in matters of “major” political or economic importance.

Agencies need discretion to organize in a world full of new problems and scientific complexity. Congress routinely grants them broad power through loosely worded laws. Congress sets its own limits at the agency’s discretion. Laws such as the Administrative Procedure Act require that agency actions be consistent with science and informed by public input. Moreover, Congress has many tools to get the errant agency back on track: confirmation and monitoring hearings, budget instructions, or even legal amendments if necessary.

Expanding the doctrine of key questions would destabilize this legislative balance and shift power to the courts. Doctrine will leave agencies with a little force to address new and pressing environmental problems such as climate change without a constant flow of legal instructions with a degree of detail that an inexperienced and political entity like Congress is not equipped to provide. Worse, the doctrine is uncertain and can be manipulated. Even conservative judges struggle to determine what triggers a “key question” review. Practically any environmental regulation worth issuing has “significant” effects on some industries, so the doctrine calls for polluters to challenge regulations and gives sympathetic judges an effective tool to overturn them.

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Most troubling, West Virginia v. EPA may be only the beginning. In its next term, the Supreme Court You will probably take another An important environmental issue: Sackett v. EPA, which relates to the geographic extent of the Clean Water Act.

Once again, the court agreed to hear a case that it would have naturally dismissed: the appellate courts did continuously He approved the scope of the law relating to the Sackett case, and it is likely that the Environmental Protection Agency and the Army Corps of Engineers will soon finalize a new proposed rule to provide more clarity about how the law will operate. So once again, the court appears to be reaching out hard to hear a case that could advance the deregulation policy agenda: restricting the scope of one of the nation’s most important environmental laws, run by an agency tasked with protecting public health and the environment.

The Clean Water Act prohibits polluters from dumping waste into state waters without a permit. Conservative groups and extractive industries want the court to rule that the law does not protect some wetlands, which would benefit polluting industries at the expense of downstream water and humans.

Americans are increasingly concerned about the environment, and two-thirds of us think our government You must do more to protect it. Why, then, do governors on the Supreme Court seem to be doing their best to stymie federal efforts to regulate polluters and slow climate change?

The reason is that the court’s five most conservative justices were chosen apparently on the basis of their devotion to an agenda so far from the legal mainstream that Charles Fried, the conservative attorney general of President Ronald Reagan, called it “retroactive. Moreover (and not coincidentally), it was confirmed by the Senators who were elected together Fewer votes of the senators who opposed their assertions. Three of them – Neil Gorsuch, Brett Kavanaugh, and Amy Connie Barrett – were nominated by the president who lost the popular vote.

This deep disconnect between the will of the people and the court’s liberalizing agenda on the environment could not have come at a more dangerous time. Intergovernmental panel on climate change Warn Our window to avoid irreversible climate damage is quickly closing. If the Supreme Court chooses this moment to pursue an agenda to limit federal regulatory power, it will serve the interests of corporations—particularly fossil fuel companies—while pushing people and the planet near the point of no return.

Sambhav Sankar He is the senior vice president of programs at Earthjustice, an environmental legal group.