The Supreme Court made last week a bad one for Cape Cod and the environment. Beyond the anti-environmental predicate behind the overturning of the clean air and fisheries rules, these decisions have far-reaching implications beyond their immediate impact of making the environment worse right now. The direct impact of these rulings will subject Cape residents to dirtier air and will undermine efforts to restore herring populations to sustainable levels.
Even worse, though, is the trajectory of thought that these rulings reflect and what they signal about where we are headed. The conservative supermajority of the Court is openly hostile to what they consider the abuses of the modern administrative state where federal agencies with subject matter expertise apply broad statutes to make regulatory standards to protect the public welfare. Utilizing Koch-funded litigation, the Court has taken aim at environmental rules, but this is really a broader assault on the rules-based order that has constrained corporate and polluter abuses in the post-war era. The framework that has resulted in cleaner air and water, protected worker safety, and brought countless other societal benefits to the public was tossed aside Friday with the overturning of the Chevron precedent that required the courts to defer to reasonable agency discretion in implementing the law.
The reversal of Chevron is couched in language that is intended to appeal to the public. The PR spin is that the decision returns power to the elected representatives of the people to write specific laws not subject to interpretation by agencies. That might sound good, but think about it for a minute. Raise your hand if you think this, or any recent Congress, can parse through complex technical and scientific issues to pass specific legislation that addresses current and future problems. I don’t think that is possible from a body that cannot agree on the basic facts surrounding something we all saw with our own eyes on TV.
In the absence of new legislation, the courts will be in the business of deciding if agencies using 20th century laws to address 21st century problems have the authority to do so. The answer is clear. The conservative Court majority, groomed and selected by the Federalists to implement a 40-year strategy to scuttle the administrative state after the Bork nomination to the Court was rejected, will continue to reject rules-setting. With Congress unlikely to step in to update the governing legislation needed to protect the environment or address climate change, we are really at the mercy of a suddenly activist conservative Court that has demonstrated its animus to a forward-looking view as it looks backward at 18th century originalism for answers.
For us Cape Codders, expect more bad air days, dirtier water, rising temperatures and higher seas. That’s all just the tip of the melting iceberg.
