Well we took a week off, but we're still not done being mad about the minoritarian justices on the Supreme Court giving polluters a free pass in the West Virginia v. EPA case.
Though there was some relief in that it doesn't directly say the EPA can't do anything about climate change, the reality is that by bringing the "major questions doctrine" out of polluter wishlists and into to the Court's majority opinions, it may be even more underhandedly devastating than what a straight reading of the supposedly "narrow" ruling would suggest. But EPA authority on carbon pollution isn't dead…yet.
SCOTUS has just handed polluters the argument they need to strike down wide swaths of federal regulations. The only exception would be regulations Congress specifically calls for, but even then courts can, and likely will, use the "major questions" excuse to say that whatever the Executive branch did wasn't actually what Congress delineated. And that's assuming that Congress is ever capable of passing real legislation addressing climate pollution — hard to envision currently given that polluters have used campaign contributions to purchase the GOP and Supreme Court. [Are we sure 'purchase' is the right word, given that we still don't know the financial instrument used to pay off Brett Kavanaugh's credit card debt? – Ed.]
Pollution profiteers know they've won. You can see it in their reactions. At the Koch-funded Daily Caller, coal/tobacco lawyer Steve Milloy crowed that "it’s hard to see how any EPA regulation of greenhouse gases is legal since Congress never authorized such regulation."
Normally, Steve Milloy is the type of person that you should believe the exact opposite of what he says, given that his career has been to defend tobacco and fossil fuels. In years prior, if he said a SCOTUS ruling meant no more EPA regulations, smart money would be on the opposite.
So we include that quote not because we think Milloy has abandoned polluter propaganda and is suddenly telling the truth. Instead, we draw your attention to it because while it is polluter propaganda, unfortunately we now have a Supreme Court that turns polluter propaganda into precedent. But when the Supreme Court lies about "major questions" in the same way polluters have funded lawyers to cook up over the years, it's not a lie, it's a doctrine.
On the Wall Street Journal's opinion page, long home to polluter propaganda, two lawyers representing people who profit off of a product that's destroying the planet's ability to sustain human civilization lay out the game plan going forward: no more deference to the administrative state.
"West Virginia and the major questions doctrine are certain to surface again soon," write David Rivkin and Mark DeLaquil, pointing to "the Securities and Exchange Commission’s proposed climate-change disclosure regulations" the FTC's anti-monopoly moves and Title IX regulations for public education. (See this WSJ editorial for another example of using this ruling to attack anything they don't like, in this case "Pete Buttigeig's Climate Toll Road.")
"Going forward," Rivkin and DeLaquil conclude, "the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule."
In other words, the first thing lawyers for polluters and profiteers are going to do when regulated is claim that Congress didn't intend for this, and whether they're right won't matter, because they'll already have purchased sufficient votes on the Hill to prevent legislation.
This Supreme Court has now been captured by the same far-right patriarchal white supremacist polluters that have thoroughly corrupted the Republican party. They're even using the same lawyers! A couple weeks before the Journal published David Rivkin's celebration gutting the administrative state, it published David Rivkin celebration the overturning of Roe, with a piece headlined "Supreme Court Reclaims Its Legitimacy."
Let's hope one day that actually becomes true.
