Climate Corner: Few options after unforgivable ruling

Jul 9, 2022

Eric Engle

Six unelected authoritarian despots on the U.S. Supreme Court have decided in the case West Virginia v. EPA that the federal administrative body tasked with protection of public health and the environment was exceeding its authority to regulate greenhouse gas emissions from coal-fired power plants under a regulation that no longer exists.

To quote Oliver Milman, writing for The Guardian, “Not only was this case about a regulation that does not exist, that never took effect, and which would have imposed obligations on the energy sector that it would have met regardless. It also involves two legal doctrines that are not mentioned in the constitution, and that most scholars agree have no basis in any federal statute.”

To quote constitutional law scholar Laurence Tribe, “…by ruling on the case at all, the court usurps power constitutionally entrusted to the government’s politically accountable branches. Article 3 of the constitution limits federal courts to deciding concrete ‘cases and controversies’ about the rights of individual parties. Yet this ‘case’ involves neither a concrete dispute nor the specific rights of any of the challengers. Instead, it’s akin to an exam question about the options theoretically available to a federal agency to address a grave problem. In answering that hypothetical question, the court will have arrogated to itself an unprecedented, open-ended power to reshape the nation’s social and economic landscape — far in excess of its legitimate authority, as the foundational case Marbury v. Madison put it, to ‘declare what the law is.’”

The regulation that was challenged in this case was the Obama administration’s Clean Power Plan. The Supreme Court stayed the plan in 2016 while the Appeals Court for the D.C. Circuit decided on its legality. The D.C. Circuit stayed its judgment until the Biden administration could formulate a new rule. A more recent Trump administration “plan” (plan really isn’t the word for it) was tossed out in the lower courts and the Biden administration has been set to craft another plan for coal-fired power plant emissions. This nonsensical decision has preempted that. And the ramifications of the decision are far-reaching.

This decision is part of an over half-a-century endeavor to dismantle the federal administrative state altogether. These justices are and have been very much a part of that longstanding “conservative” scheme (I don’t understand why the word “conservative” is still used to describe them, what are they conserving?) and this is at least one culmination of this ongoing effort. To quote once more from Milman, “But the ruling could also have sweeping consequences for the federal government’s ability to set standards and regulate in other areas, such as clean air and water, consumer protections, banking, workplace safety and public health. It may prove a landmark moment in conservative [there’s that word again] ambitions to dismantle the ‘regulatory state,’ stripping away protections from Americans across a wide range of areas.”

So, Congress has got to act, right? One would certainly hope, but it’s not likely. The Constitution provides for two senators per state regardless of population size and our senior senator in West Virginia, Sen. Joe Manchin III, has been holding up crucial climate policy. Why? Because he’s a coal baron. He makes over $500,000 a year from selling waste coal (aka gob) to an 80Mw facility the grid doesn’t need that burns this coal at a cost of $121 million to MonPower ratepayers just between 2016-2021. Any policy that hastens the move to renewable energies threatens his cash cow.

Minority tyranny in the United States is a direct threat to the ability of humankind to continue to safely inhabit this planet. Full stop. The makeup of the U.S. Senate, the Electoral College, the gerrymandering of U.S. House districts, and the illegitimate Supreme Court are not only anti-democratic, but a threat to our only home in the cosmos. Five of the six justices who decided West Virginia v. EPA were appointed by presidents who didn’t win the nationwide popular vote and confirmed by senators who represented tens of millions fewer Americans than those senators who opposed them.

There are options. The court could be expanded to 13 justices instead of 9 to match the number of appellate circuit courts in the country now. There’s historical precedent for expanding the court. Justices like Kavanaugh and Gorsuch could be impeached for lying under oath over Roe v. Wade during their confirmation hearings. The filibuster could be altered or abolished, and crucial public policy passed to address the climate crisis and codify Roe, just for starters. Unfortunately, Democrats lack the intestinal fortitude. Posterity will never, and should never, forgive us.


Eric Engle is chairman of Mid-Ohio Valley Climate Action.