Great attention and concern followed the release of the NOAA report predicting more rapid and significant sea level rise than previously thought likely in the next 30 years. On the heels of a report as alarming as this for events that will occur in the very near term, one would expect a unified response that seeks to help our nation protect itself from this dire future. One would think but that is not what is happening this week at the Supreme Court. The court is considering a case that, if the plaintiffs prevail, will eviscerate the ability of the federal government to address matters of great importance, inclusive but not limited to climate, to the well-being of the nation.
In West Virginia v. USEPA, the plaintiffs are arguing that the Clean Power plan, a set of regulations proposed but never actually implemented, are illegal because federal agencies have usurped the rule-making power reserved by Congress. While its target is EPA in this narrow instance, the case is really about the fundamental scope and shape of the federal government’s ability to develop complex and nuanced regulations through administrative agencies across the entire spectrum of life. The plaintiffs, coal states clinging to an ever-diminishing role in the energy sector, are being supported by not just the Koch’s but a wide range of originalist thinkers looking to unravel over a century of what they perceive as activist overreach by the federal government.
While realizing that there is a certain intuitive populist appeal to reigning in the feds, this is about so much more. The crux of the case here is not whether the federal government does too much, it’s that whatever it does needs to come from Congress, not administrative agencies. What that means here is that instead of Congress passing a law that requires drinking water at your tap and relying on professional and trained staff at EPA to write the rules, that Congress should legislate the rules itself. This is the same Congress that can’t pass a budget, avoid periodic threats of default or even agree on what treason looks like. Do you want that Congress to decide what amount of toxics are okay for you to drink or breathe, to write the rules that protect your bank account from fraud, to set design and safety requirements for roads and bridges, to decide if you qualify for a hip replacement, or what your nurse-to-patient ratios ought to be? Do you really think, for even a second, that relying on likes of Marjorie Taylor Greene or Paul Gosar or A.O.C. is a good idea and will result in a better, safer, and healthier nation? I don’t, but if you think differently, see me after class; we need to talk.
The cynical truth here is while the attorney general for the state of West Virginia may just be trying to win this case in the narrow application of his state’s perceived interests, the forces filing briefs in support of the plaintiff have a larger agenda. They know that Congress can’t execute the responsibilities that would fall to it were the plaintiffs to prevail, and that is their ultimate end game. Their cynical goal is to have the fullest range of protective federal rules governing not only the environment but all aspects of oversight of their vast holdings and business interests wiped away. This is the goal because they know that Congress lacks the expertise, leadership and will needed to replace the protective rules they seek to wipe away riding the Trojan Horse of Constitutional Originalism.
This legal strategy, ironically reliant on the same type of judicial activism long decried by the plaintiff’s enablers, has been a long time in the making. And if this case fails, there are others in the pipeline that seek a similarly radical reshaping of structure of American life. While a win for the plaintiff likely dooms Cape Cod and the world to the direst predicted climate impacts, it will disrupt and further destabilize society in ways hard to imagine. I don’t know about you, but things feel unstable enough right now without adding this to the mix.
