Experts from the O’Neil Institute for National and Global Health Law concur that the opinion itself is devastating. Andrew Twinamatsiko, associate director of the Health Policy and the Law Initiative, worries about its far-reaching implications for other agencies:
The Court’s decision in West Virginia goes beyond the EPA’s power to fight climate change. It will limit federal agencies from implementing and interpreting federal law and give unelected judges the power to second-guess Congress and the White House. West Virginia is especially alarming for those who care about health care and public health because Congress relies on the expertise of federal agencies—such as the FDA, CDC, NIH, etc.—to interpret and implement legislation. West Virginia is sadly yet another stop on the Court’s path to handcuff federal agencies and follows recent decisions to gut the CDC and OSHA’s power to fight COVID-19.
He’s not alone in his fears. In fact, members of the court itself feel similarly.
Justice Elena Kagan wrote the dissenting opinion and clearly understands the stakes here more so than Roberts, who seems to think it would be nice in theory to reduce emissions but that twisted, conservative academic bullshit stands in the way of actually allowing the EPA to do its job. Unlike Roberts or Gorsuch, who truly do not care to understand how the climate crisis will grow all the worse with this decision, Kagan actually cites Intergovernmental Panel on Climate Change reports that say as much. In calling out the Supreme Court for its nefarious, continued stymying of the EPA, Kagan does not hold back: “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.”
True, this case stems from a plan that was never implemented and utterly destroyed by the Trump administration. In bringing it in the first place, the many attorneys general from conservative, polluting states saw an opportunity to argue harm would be done before a policy even went into effect. And it worked. This bodes terribly for the forthcoming Sackett v. EPA, a similarly “murky” case in which the question at its center is whether wetlands constitute waterways of the U.S. I’d be naive to think the Supreme Court would do anything but set its sights on destroying the Clean Water Act next.
Election law attorney Adam Bonin joins Daily Kos Elections’ The Downballot podcast to talk about what moves Democrats can make