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When the U.S. Supreme Court overturned Roe v. Wade last week, a variety of observers took note of the lengthy and methodical strategy that preceded it. The opinion didn’t just happen; opponents of reproductive rights executed a complex, years-long strategy to achieve their regressive goal.
On the climate crisis, a similar dynamic unfolded. As The New York Times noted this morning, there was also “a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders to use the judicial system to rewrite environmental law,” all in the hopes of “weakening the executive branch’s ability to tackle global warming.”
Unfortunately for life on Earth, Republican-appointed justices delivered for them, too. NBC News reported:
The Supreme Court on Thursday curbed the Environmental Protection Agency’s options for limiting greenhouse gas emissions from existing power plants, one of the most important environmental decisions in years. In a setback for the Biden administration’s efforts to combat climate change, the court said in a 6-3 ruling the EPA does not have broad authority to shift the nation’s energy production away from coal-burning power plants toward cleaner sources, including solar and wind power.
The opinion in West Virginia v. EPA was written by Chief Justice John Roberts. He was joined, predictably, by his five other Republican-appointed colleagues.
Part of what makes this case odd is the fact that the high court didn’t even need to hear the case. Six years ago, justices blocked the Obama administration’s plan to reduce power plants’ carbon emissions, though the Democratic administration’s goals ended up being met anyway. The Trump administration pushed a plan more to polluters’ liking, but the D.C. Circuit Court of Appeals rejected that, too.
It fell to the Biden administration to settle on a new plan, which the Supreme Court’s conservatives preemptively rejected before it existed, concluding that the EPA’s powers in this area deserve to be curtailed.
In her dissent, Justice Elena Kagan marveled at the fact the court’s majority “could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.”
That’s not all she said. Kagan’s dissent added:
“The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”
Kagan, who was joined in her dissent by Justices Stephen Breyer and Sonia Sotomayor, also noted that majority’s impositions on the EPA’s authority “fly in the face of the statute Congress wrote. The majority says it is simply ‘not plausible’ that Congress enabled EPA to regulate power plants’ emissions through generation shifting. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants.”
In biting dicta, Kagan poked her conservative colleagues for their casual indifference to their purported principles. “Some years ago, I remarked that ‘[w]e’re all textualists now.’ It seems I was wrong,” she wrote. “The current Court is textualist only when being so suits it.”
Ouch.
At this point, some of you might be thinking, “Wait, if the Supreme Court rejected a policy that didn’t yet exist, maybe this isn’t so bad?”
If only it were that simple: What the court’s far-right majority did was curtail the EPA’s powers to combat the climate crisis. In the coming years, federal agencies trying to address the planetary emergency will find that six GOP-appointed justices have effectively tied their hands.
Complicating matters is the larger governing context. As my MSNBC colleagues Ja’han Jones explained yesterday, ahead of the opinion’s release, “Fundamentally ... the case will effectively determine whether, according to the six conservative justices on the Supreme Court, the government has any authority to impose regulations at all. Republicans have been attacking the so-called administrative state — that is, government agencies — for decades now. These agencies have traditionally been tasked with upholding civil rights and human rights, and the GOP sees them as roadblocks impeding their anti-democratic vision for the country.”
Today, opponents of such safeguards were handed a gift by six justices.