In a June 19 story, The New York Times’ top environmental reporter Coral Davenport noted:
“Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants—pollution that is dangerously heating the planet.
But it’s only a start.
The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming. Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases.”
Everyone here has undoubtedly heard of Jan. 6 coup-plotter Ginni Thomas, the wife of Justice Clarence Thomas, but how many know about Anne M. Gorsuch, the mother of Justice Neil Gorsuch?
Anne Gorsuch, a radical anti-environmental activist, was appointed by Ronald Reagan in 1981 to be the first female administrator of the Environmental Protection Agency. She worked hand-in-glove with Reagan’s controversial Secretary of the Interior James Watt to undermine federal environmental regulations.
Here is how The Washington Post described her controversial 22-month tenure as EPA administrator in her 2004 obituary. In 1983, after she and her first husband, David Gorsuch, divorced, she married Robert F. Burford, a rancher and head of the Bureau of Land Management.
Her 22-month tenure was one of the most controversial of the early Reagan administration. A firm believer that the federal government, and specifically the EPA, was too big, too wasteful and too restrictive of business, Ms. Burford cut her agency's budget by 22 percent. She boasted that she reduced the thickness of the book of clean water regulations from six inches to a half-inch.
Republicans and Democrats alike accused Ms. Burford of dismantling her agency rather than directing it to aggressively protect the environment. They pointed to budgets cuts for research and enforcement, to steep declines in the number of cases filed against polluters, to efforts to relax portions of the Clean Air Act, to an acceleration of federal approvals for the spraying of restricted pesticides and more.
Nearly all of her subordinates came from the ranks of the industries that the EPA was charged with regulating.
Her undoing came as the result of a scandal over the mismanagement of the new $1.6 billion Superfund toxic waste clean-up program by effectively freezing its implementation. She was cited for contempt of Congress after refusing to turn over Superfund records, arguing that they were protected by executive privilege.
This was the last straw even for Reagan, who forced her to resign and replaced Gorsuch with Bill Ruckelshaus, a moderate Republican who was appointed by President Richard Nixon in 1970 as the first EPA administrator. Ruckelshaus later resigned as deputy attorney general in the 1973 “Saturday Night Massacre” rather than obey Nixon’s orders to fire special Watergate prosecutor Archibald Cox.
Like mother, like son?
When Trump nominated Gorsuch to the Supreme Court in February 2017, the Sierra Club wrote that his “opinions regarding environmental laws may be a matter of maternal trauma as much as conservative ideology.”
“A fuller review reveals a major and traumatic experience that almost certainly would have impacted the outlook of her then-16-year-old son, who had moved from Denver to D.C. with his mother when she was appointed and before she caused the first major scandal of the Reagan administration.” [...]
It seems likely that this harrowing family experience left a lasting mark on Neil Gorsuch. To quote a New York Times editorial, “He is even more conservative than Justice Scalia in at least one area—calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency, that are charged with implementing complex and important federal laws.”
Columbia professor Steven Cohen, who formerly served as executive director of the university’s Earth Institute, was forced out of his job as an EPA consultant in 1981 by Anne Gorsuch. In a June 21 article on Columbia’s State of the Planet website Cohen sounded the alarm about the Supreme Court’s “radical environmental deregulation” agenda:
The irony today is that Gorsuch’s son, Supreme Court Justice Neil Gorsuch, may finally have a chance to complete his mother’s anti-regulatory and environmentally destructive work.
There has been a long and convoluted path that has led to West Virginia v. EPA coming before the Supreme Court. For background, here is a summary from Harvard Law Today.
During the Obama administration, the EPA established the Clean Power Plan, which set the first national limits on carbon pollution from U.S. power plants. A number of industry groups and Republican state attorneys general filed a lawsuit arguing that the EPA had exceeded its congressional authority in issuing the plan.
The case ended up being dismissed after Trump’s election. The Trump administration repealed the Obama-era Clean Power Plan and issued its own much weaker Affordable Clean Energy rule which relaxed restrictions on greenhouse gas emissions from power plants. That plan was challenged by Democratic states and cities as well as environmental advocacy groups.
In January 2021, on the last day of Trump’s administration, the federal appeals court in Washington, D.C., in a 2-1 decision, struck down the Affordable Clean Energy rule. That led the attorneys general of West Virginia and other Republican-governed states, along with several coal companies, to ask the Supreme Court to review the D.C. appellate court’s decision. The plaintiffs argued that the EPA lacks the authority to regulate power plant emissions and this authority instead should be granted to Congress.
What made the Supreme Court’s decision even odder was that the Biden administration has yet to even establish a new rule on greenhouse gas emissions from power plants. Thus the Supreme Court is considering setting a precedent for limiting future EPA rule-making on power plant emissions.
During oral arguments in February, several of the conservative SCOTUS justices questioned the scope of the EPA’s ability to regulate carbon emissions from power plants, which could sharply curtail the Biden administration’s efforts to deal with climate change.
Beyond environmental policy, the case also reflects the skepticism held by the court’s conservative majority about the power of federal agencies to deal with major issues impacting the nation. That viewpoint was reflected during the coronavirus pandemic when the court ruled that the Centers for Disease Control and Prevention lacked the authority to impose a moratorium on evictions or that the Occupational Safety and Health Administration could not tell large companies to have their workers be vaccinated or undergo frequent testing for COVID-19.
In her New York Times piece, Davenport wrote that Republican activists say that their ultimate goal “is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.” She wrote:
“Known as “Chevron deference,” after a 1984 Supreme Court ruling (Chevron v. Natural Resources Defense Council), that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. “Judges are not experts in the field and are not part of either political branch of the government,” Associate Justice John Paul Stevens wrote in his opinion for a unanimous court.
But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. In one of his most famous opinions as an appeals court judge, Associate Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
It’s all part and parcel of what Trump’s former chief political strategist Steve Bannon has long advocated: the “deconstruction of the administrative state.”
The aim of Republican state attorneys general supporting lawsuits such as West Virginia v. EPA is to limit the ability of federal agencies to set rules and regulations that affect the U.S. economy—for example, environmental policies discouraging the use of coal. Instead, they argue that it is the role of Congress to set such rules and regulations because lawmakers are more accountable to voters than federal bureaucrats. That, of course, is a formula for inaction or even worse consequences if Republicans regain full control of Congress and the White House.
And when it comes to climate change, Congress has done little to address the issue—just look at the failure to enact Biden’s Build Back Better agenda which included measures to promote clean energy over fossil fuels.
As is the case with gun regulations and abortion rights, the Supreme Court is likely to make a controversial ruling opposed by an overwhelming majority of Americans. Poling conducted by Data for Progress and Evergreen Action in June found that almost three-quarters of all likely voters (74%) are concerned about air and water pollution in their communities. Nearly two-thirds of likely voters are concerned about the Supreme Court removing environmental protections established by the Clean Air Act.
Davenport summed up what could be the disastrous impact of rulings by the Supreme Court’s conservative majority in the West Virginia case as well as other environmental regulation cases in the legal pipeline.
It would mean the federal government could not significantly restrict tailpipe emissions, force electric utilities to replace fossil fuel-fired power plants with wind and solar power, and consider the economic costs of climate change when evaluating whether to approve a new project like an oil pipeline or environmental regulation.
Those limitations on climate action in the United States, which has pumped more planet-warming gases into the atmosphere than any other nation, would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age. That is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases. The Earth has already warmed an average of 1.1 degrees Celsius.
“If the Supreme Court uses this as an opportunity to really squash E.P.A.’s ability to regulate on climate change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.
But that may be of no concern to the likes of Neil Gorsuch. After all, mommy knows best.
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