The Supreme Court has yet to issue its opinion on West Virginia v. Environmental Protection Agency, but it’s certainly on the minds of Americans with a vested interest in the U.S. reaching its net-zero goals. According to a recent Data for Progress survey, a majority of voters—63%—are at least somewhat concerned about the case’s outcome, which could inhibit the EPA from enforcing the Clean Air Act. The Supreme Court has already indicated it’s more concerned with theoretical matters like the major question doctrine than the practicality and moral imperative of holding major emitters like energy companies accountable for their pollution. With an expected bleak outcome given SCOTUS’ opinion on Dobbs v. Jackson Women’s Health Organization, it’s worth diving into why the highest court in the country—and the entire judicial system—is willing to destroy the planet.
Dartagnan does a great job of illustrating this, drawing from a recent New York Times article on how former president Donald Trump was able to pack courts across the country with judges who unquestioningly issued injunctions and ruled in the favor of polluters and those sympathetic to the oil and gas industry. In turn, many of those justices were rewarded by those within the fossil fuel sector through donations. That carries over to the Supreme Court as well, where the Federalist Society, an organization also benefitting from the oil and gas industry’s largesse, essentially hand-picked the justices Trump nominated who now sit on the court, including Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch. On the lower courts, Trump appointed more than 200 judges.
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If the Supreme Court were to rule in favor of West Virginia and the more than a dozen states arguing against EPA enforcement on power plant emissions, they could also alter the very scope of federal agencies. It’s not just about the conservative justice talking point of major questions: It’s about whether agencies have the power to oversee enforcement or whether those tasks should be left to lawmakers. Typically, the task falls to the experts like those who join the EPA with practical experience that makes them perfectly positioned to understand and carry out, say, air quality monitoring. But yet another conservative point is to push for small government and I can think of no more immediate way to do so than by ruling that the EPA doesn’t have the power to do its job and that therefore no agency to enforce much of anything.
This isn’t the only environmental case coming up that the Supreme Court will rule on: The court agreed to hear Sackett v. EPA in October. The case concerns the Clean Water Act, specifically the definition of waterways of the U.S. and whether wetlands fall under that scope. The Sacketts suing the agency—married couple Mike and Chantell, who argue that their property rights are being destroyed by a renegade EPA and that the agency is preventing them from building their dream house—are unsurprisingly Republicans and their case was highlighted on the Federalist Society’s website. A teleforum discussing the scope of the Clean Water Act featured two lawyers who generally argue on behalf of property right fiends like the Sacketts, so I can’t say it’d be a jump if Federalist Society favorite judges like Kavanaugh, Gorsuch, and their ilk rule similarly.
