01 July 22
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A destructive decision in West Virginia v. E.P.A.
Fatefully, he also wrote: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” At the time he was writing, the “activist” court was standing up for things that most Americans wanted, such as clean air and water—and the right of women to control their own bodies. But the Supreme Court, and hence the judiciary, has come under the control of the kind of men that Powell envisioned—he may not have envisioned women on the bench, but Amy Coney Barrett is otherwise his type of judge. And, with this ruling, they have taken more or less total control of Washington’s ability to generate policy that might disrupt the status quo.
In essence, the ruling begins to strip away the power of agencies such as the E.P.A. to enforce policy: instead of allowing federal agencies to enforce, say, the Clean Air Act to clean the air, in this new dispensation, Congress would have to pass regulations that are much more explicit, as each new pollutant came to the fore. As West Virginia’s attorney general explained, “What we’re looking to do is to make sure that the right people under our constitutional system make the correct decisions . . . these agencies, these federal agencies, don’t have the ability to act solely on their own without getting a clear statement from Congress. Delegation matters.”
But, of course, the Court has also insured that “getting a clear statement from Congress” to address our deepest problems is essentially impossible. The decision in Citizens United v. F.E.C., in 2010, empowered corporations to game our political system at will. That explains, in part, why Congress has not passed a real climate bill in decades. The efforts that Democratic Administrations have made to try and control greenhouse gasses have mostly used provisions of the Clean Air Act because it is the last serious law of its kind that ever came to a President’s desk (Nixon’s, in this case).
A train of similar cases now approaches the high court—they would, for instance, make it all but impossible for the federal government to regulate tailpipe emissions or to consider the financial toll of climate change when deciding whether to approve a new pipeline. As the Times reported in a recent investigation, the plaintiffs in these cases “are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.”
And this new jurisprudence would, in turn, make it even harder to achieve any international progress on rising temperatures. If the United States—historically, the world’s largest emitter of carbon—can’t play a serious policy role, it won’t play a serious leadership role. John Kerry, Biden’s climate envoy, who has been trying to rally the world for more aggressive climate action, is running out of cards to play.
Given the record flooding in Asia, the record heat in the Mideast, the record fires in the Southwest, and the record rainfall in Yellowstone, there’s a nihilist strain to this ruling. Be careful what you wish for: the biggest threat to corporate futures today is not a paperback about “erotic free love”; it’s an out-of-control climate that will undercut financial stability. But the conservative drive to roll back federal power has long since become more ideological than practical; the right-wing luminary Grover Norquist updated Powell’s plan for a feistier age, when he said that he wanted to shrink the federal government to a size that he could then “drown in a bathtub.” But drowning whole communities as the sea level inexorably rises?
And what about the large majority of Americans who want action on climate change, and the activist campaigners who have pushed that desire to the fore? Those activists have engaged with good faith over many years in an effort to use the latent power of the federal government to make necessary change, but now that effort seems less and less sensible. There remains an outside hope that the Build Back Better bill might still pick up fifty votes in the Senate before the fall, when Republicans could potentially regain control of Congress; the tax credits for renewable energy it contains would probably pass Supreme Court muster. But beyond that it’s hard to see exactly what the point of demanding federal climate action is now; why march on the Capitol or the White House if the Supreme Court won’t let elected leaders act even if they want to? And there’s no real way to march on the Supreme Court—it exists outside the ambit of normal politics—though rulings like this will also raise the pressure to expand the size of the Court, if and when the Democrats have the votes to do so.
You could also hope that an engaged Federal Reserve might take action—as Aaron Regunberg pointed out in a recent article, Court precedent (for whatever that’s still worth) might give the Fed some latitude. And state legislatures can act, too, though even there the Court may hem in their ability to, say, set mileage restrictions on cars—in fact, Republican attorneys general from around the country have already filed suit in the D.C. circuit court to do just that. (The D.C. circuit court contains new appointees such as Neomi Rao, who oversaw deregulation efforts in the Trump Administration before he offered her a seat on the bench.) Campaigners will keep trying to win elections, and to write policy, but it took Lewis Powell fifty years to win this fight, and it may take fifty years to win it back—and we do not have that kind of time in the fight against warming.
Wall Street may be the only other actor large enough to actually shift the momentum of our climate system. The pressure on banks, asset managers, and insurance companies will increase precisely because the Court has wrenched shut this other spigot. Convincing banks to stop funding Big Oil is probably not the most efficient way to tackle the climate crisis, but, in a country where democratic political options are effectively closed off, it may be the only path left.
You've been duped if you believe this is DEMOCRACY!
MAKE SURE YOU DON'T MISS THIS PART:
excerpt:
According to a report from Greenpeace, “Koch Family Foundations have spent $145,555,197 directly financing 90 groups that have attacked climate change science and policy solutions, from 1997-2018.”
A number of the front groups with long ties to Charles Koch filed amicus briefs in the case, pushing for the very outcome that six members of the court dutifully handed them.
The Cato Institute, a nonprofit that was actually secretly owned by Charles Koch, his late brother, David, and a handful of others for decades, told the Supreme Court this in the amicus brief that it filed together with the Mountain States Legal Foundation....
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The Supreme Court’s EPA Decision Is One More Win for Charles Koch’s Dystopian America
By Pam Martens and Russ Martens: July 1, 2022 ~
Imagine a country that allows a private fossil fuels conglomerate (or its billionaire boss, Charles Koch, the 17th richest person in the world according to Forbes) to get away with the following:
Meet secretly with big political donors twice a year to plot a coordinated strategy to put their chosen people in public office;
Meet at his private club with a sitting Supreme Court justice who will then rule on key legislation that benefits his interests;
Fund an organization that then sluices money to the wife of the Supreme Court Justice;
Run a highly sophisticated voter registration database, data mining and get-out-the-vote operation called i360, in order to pack Congress with people who will pursue an antiregulatory agenda;
Install dozens of its lawyers and operatives into the highest offices of the federal government;
Run a sprawling, opaque trading operation that could potentially be raising the prices of the fossil fuel products it sells via the futures market;
Continue to operate major factories in Russia, ignoring sanctions and a murderous regime waging an unprovoked war on Ukraine, until a pressure campaign forced it to say it will look for an exit strategy;
Fund a sprawling network of taxpayer-subsidized front groups to deny climate change and foment hate;
Provide funding to groups involved in sending a mob to attack the seat of government of its own home country on January 6;
Fund groups that use dark money and propaganda to put lifetime justices on the highest court to pass legislation friendly to the fossil fuels conglomerate.
If this sounds like some kind of dystopian novel, welcome to the United States of Koch, circa 2022. Even the comedians at Saturday Night Live get it. SNL Weekend Update co-anchor, Colin Jost, offered this take in May:
“Is it me or does every story sound like the opening voiceover in a Mad Max movie? The year is 2022. A virus rages across the planet. Digital money has collapsed. Infants have nothing to eat. Women are forced to breed. Men are ready to die for gasoline….”
Now add this to the list, the taxpayer-funded federal agency, the Environmental Protection Agency (EPA), can no longer protect the environment and the planet from greenhouse gases, thanks to Koch front groups that maneuvered a case to the U.S. Supreme Court, even though it wasn’t ripe for review, and got precisely the decision they wanted yesterday in a 6-3 decision handed down by justices installed by groups backed with Koch money.
The case, West Virginia vs EPA, et al, was brought by two red states and coal companies.
Legal scholars believe the decision may have the broader impact of limiting the authority of other federal agencies to take regulatory action without specific congressional approval. The decision will certainly open the floodgates to more of these kinds of challenges, which is certainly a secondary win for Koch and his minions.
Justice Elena Kagan wrote the dissenting opinion on behalf of herself, Justice Sonia Sotomayor and Justice Stephen Breyer, who retired yesterday. Kagan wrote:
“Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’ noting that “The Earth is now warmer than at any time ‘in the history of modern civilization,’ with the six warmest years on record all occurring in the last decade.”
Kagan directly challenged the majority’s view that the EPA did not have the authority to regulate greenhouse gases, writing: “Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare.’ 42 U. S. C. §7411(b)(1)(A). Carbon dioxide and other greenhouse gases fit that description…”
Kagan also explained how the Supreme Court has been doing the bidding of the fossil fuels industry going back to the Obama administration, writing: “This Court has obstructed EPA’s effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts….”
According to a report from Greenpeace, “Koch Family Foundations have spent $145,555,197 directly financing 90 groups that have attacked climate change science and policy solutions, from 1997-2018.”
A number of the front groups with long ties to Charles Koch filed amicus briefs in the case, pushing for the very outcome that six members of the court dutifully handed them.
The Cato Institute, a nonprofit that was actually secretly owned by Charles Koch, his late brother, David, and a handful of others for decades, told the Supreme Court this in the amicus brief that it filed together with the Mountain States Legal Foundation:
“This case is illustrative of an alarming trend whereby presidents turn to implied authority, typically in long-extant statutes, to achieve what Congress fails to do.”
That sentence is particularly nauseating because Koch packed the Trump administration with his own operatives. A Koch front group, Freedom Partners, quickly provided the Trump administration with a list of regulations it wanted gutted – like U.S. participation in the Paris Climate accord (which Trump revoked on June 1, 2017 after barely four months in office) and numerous EPA rules. Freedom Partners threatened those lawmakers who didn’t get on board, writing that “Freedom Partners will hold lawmakers who oppose regulatory relief accountable for their positions.”
Why did Koch have it out for the EPA? Koch Industries has been serially charged, including a criminal conviction, with dangerously polluting the environment. On January 13, 2000, the Justice Department and the EPA announced the largest civil fine ever imposed against Koch Industries to resolve claims related to its “more than 300 oil spills from its pipelines and oil facilities in six states.” The company agreed to pay a $30 million civil penalty and spend $5 million on environmental projects. Daniel Schulman documented Koch Industries’ history of environmental abuses in his 2014 book, Sons of Wichita: How the Koch Brothers Became America’s Most Powerful and Private Dynasty.
So in the dystopian world of Koch, it’s just fine for Presidents to do the bidding of the fossil fuels industry but it’s not okay for a President or Congress to attempt to enforce the laws that regulate a dangerous, polluting industry.
Another front group widely associated with Koch is Americans for Prosperity (AFP). Koch previously attempted to distance itself from the group until a video emerged of David Koch addressing an AFP gathering and telling the audience that his brother, Charles, and he provided the funds to start AFP.
AFP also filed an amicus in the EPA case, producing this particularly vomitous passage:
“In this country, all government power must flow from its proper source: We the People. Our system of government relies on the consent of the governed, memorialized in the Constitution.”
Another Koch-linked group, the New Civil Liberties Alliance (NCLA), also filed an amicus brief in the case. The NCLA is where Jeffrey Clark went to work after leaving the Trump administration. (Clark is the environmental lawyer who worked at the Justice Department under Trump and was involved in plotting the coup attempt on January 6.) NCLA hired Clark despite the likelihood that Clark would be facing a long criminal investigation and potential conviction. NCLA named Clark the Chief of Litigation and Director of Strategy. (According to the New Yorker’s Jane Mayer, Clark now has a new job.)
The NCLA has received millions of dollars from Charles Koch related entities. The Charles G. Koch Foundation gave NCLA $1 million in each of the years 2017, 2018 and 2019. The Charles Koch Institute gave NCLA $1 million in 2020. Donors Trust, a dark money nonprofit with a multitude of ties to Charles Koch, gave NCLA more than $2 million in total from 2018 through 2020. The information comes from publicly-available 990 tax filings.
The NCLA had the audacity to write the following in its amicus brief:
“When enacting the Constitution, the people gave to Congress, and to Congress alone, the power to legislate, most centrally the power to make binding rules—those limiting their liberty. The location of this power in Congress was essential because of the fundamental principles of consent and the separation of powers. But it is not only these underlying principles that should guide this Court in barring any relocation of legislative power. Both the drafting debates and the Constitution’s very text make clear that legislative power cannot be shared or otherwise transferred.”
Let that settle in for a moment. NCLA hires a man who was engaged in an effort to overthrow the government as its Chief of Litigation and it’s lecturing the Supreme Court justices on what the framers of the Constitution had in mind.
Brian Rosner, Senior Litigation Counsel for the NCLA released this Orwellian statement yesterday on news of the Supreme Court decision going its way:
“At heart, this decision is a victory for democracy: the major decisions affecting people’s lives are to be made by the people’s representatives in Congress, not by unelected bureaucrats. Just in time for the anniversary of our nation’s freedom, the Court has gifted the American people a renewal of their democracy.”
A “renewal of their democracy,” got that, from the same Koch network that has been subverting democracy for more than four decades.
Senator Sherrod Brown (D-OH), the Chair of the Senate Banking Committee, released the following statement yesterday on the Supreme Court’s decision:
“Let’s be clear about what is at the heart of the matter – the Supreme Court has sided with corporate power and polluters over the people and the planet. Stripping the Environmental Protection Agency of its ability to regulate under the Clean Air Act hobbles the agency’s ability to protect Americans’ health. This decision will not just impact the EPA. The reasoning in this case will set us back decades in the fight against climate change and will reverberate throughout our government, making it harder to protect families and communities. This court continues to legislate from the bench in increasingly dangerous ways, and it’s up to Congress and the President to act as checks on them as the founders intended. I’ll be working with my colleagues on both sides of the aisle to ensure that today’s decision does not impede our nation’s response to the climate crisis.”
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