A Final Slap at Environment
Terry H. Schwadron
July 1, 2022
The rightward march of the Supreme Court finally came to a season halt yesterday with a strike against environmental regulation and the power of the federal government, stunning ignoring the practical issues that underscore the needs.
Still, the day may be remembered as the passing of the liberal torch of Justice Stephen Breyer to the first African American woman justice, Ketanji Brown Jackson. It is a change that at once recognizes America’s obsessions with identity and that, unfortunately, will not affect the serious tilt of the court to support the political Right.
Indeed, the tumultuousness of Jackson’s confirmation and the Trump nominees who preceded her alone showed the political passions surrounding the court.
The string of what feel like outwardly political decisions that have tossed out precedents, eliminated perceived rights allowing legal abortion nationally, stretched the meaning of legal language and ignored the practical impact of its rulings show the validity of those concerns about the lean of a Supreme Court in which public trust is plummeting.
The final rulings of the court’s year involved Republican state-sponsored challenges of the Environmental Protection Agency to regulate greenhouses gases and forcing the Joe Biden administration to continue enforcing immigration protocols to keep migrants in Mexico for months or years while they await adjudication on asylum requests to enter the United States.
The court majority found ways to clip the power of the federal government in one and rejected a state challenge in the other. In both, the decisions were based on close examination of supporting statutes and with no regard to the practical implications or the specialized knowledge of federal agencies.
A Pattern of Rulings
In that regard, what we saw at the end of the court term was exactly the pattern throughout. This court, whose justices claim to be above politics, have issued a series of opinions that is changing the view of what a federal government legally can tackle altogether.
Remember, whether you talk abortion, guns, religion, environment or immigration, the only substantial thing that has changed since these issues last came before the court has been the makeup of the court to a majority of justices appointed by conservatives.
This is about numbers, not law, and the decisions have made their own case that the Supreme Court has emerged as a sort of super-legislature of appointees with lifetime jobs and no oversight or appeal. The set of decisions this year underscore the importance of who’s doing the nominating and confirming — and should remind us constantly that the Supreme Court is a political entity, no matter what its justices say it is.
The two cases decided yesterday were clear attacks on the government’s ability to set regulations. The court wants Congress to vote laws that are specific about the content of regulations — something seeming impossible for that ever-split body to decide.
The Environmental Case
Specifically, a 6–3 majority limited how the nation’s main anti-air pollution law can be used to reduce carbon dioxide emissions from power plants. The court ruled in an opinion by Chief Justice John Roberts that the Clean Air Act does not give the Environmental Protection Agency broad authority to regulate greenhouse gas emissions from power plants that contribute to global warming. The case is called West Virginia v. Environmental Protection Agency
The ruling makes it harder for this government to do anything substantial about complicate climate change. The EPA was to issue regulations for power plants by the end of this year; Biden has said he wants to cut the nation’s greenhouse gas emissions in half by the end of the decade and to have an emissions-free power sector by 2035. Power plants account for roughly 30% of carbon dioxide output, and many have acted on their own to close coal-driven plants for marketplace reasons.
Just for context, the United Nations issued report yesterday as well, warning that the effects of climate change are about to get much worse and faster than predicted.
But then, the Supreme Court is not about solutions. It has retreated to a word-centric “originalist” view of legal language as if its rulings have no practical importance.
As it happens, the environmental case has had several twists and turns since former President Barack Obama introduced the Clean Air Act. Questions before the court includes whether states and coal companies had a legal right to bring the case to the Supreme Court at all and whether Congress can assign to federal agencies “decisions of vast economic and political significance” without spelling them out clearly.
The court was silent about other regulations, but the risks seem obvious; there is little to distinguish environmental regulation from health regulations, for example,
The New York Times summarized: “The implications of the ruling could extend well beyond environmental policy and further signal that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.”
The Immigration Case
By contrast, the court rejected a challenge by Texas of the Biden administration’s efforts to end a Donald Trump-era immigration program forcing asylum seekers to await approval in Mexico. That decision also was written by the chief justice, who was joined. Justice Brett M. Kavanaugh and the court’s three liberal members. Justice Amy Coney Barrett agreed with much of the decision.
The case, Biden v. Texas, was considered complex because of contradictory judicial orders from different courts and the challengers’ reliance on multiple statutes. The Migrant Protection Protocols program applies to tens of thousands of people who left a third country and traveled through Mexico to the U.S. border.
For those staying in Mexico, conditions have been generally terrible, and Biden — and Mexican officials — wanted to allow more people to remain in the U.S. while awaiting outcome of their cases. Republican-led states led by Texas have objected.
Again, it seemed not to be any of the practical effects about immigration that are resolved here, just whether sufficient notice of change was properly communicated under the different statutes. As such, it is not a case with political leanings beyond the obvious one — that Biden wanted to overturn a Trump immigration practice.
It must been a weird day for the arrival of a liberally oriented Justice Jackson.