WASHINGTON – In a few days, the Conservative majority in the Supreme Court is expected to issue a ruling that could severely limit the federal government’s authority to reduce carbon dioxide from power plants, a pollution that dangerously heats the planet.
But it is only the beginning.
The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multi-year strategy by Republican attorneys general, conservative legal activists and their funders, several with links to the oil and coal industries, to use the judicial system. to rewrite the environment. law, weakening the ability of the executive branch to cope with global warming.
There are more climate cases through federal courts, some with new legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and companies that produce greenhouse gases.
“West Virginia’s case against the EPA is unusual, but it is emblematic of the big picture. AGs are willing to make more use of these unusual strategies, “said Paul Nolette, a political science professor at Marquette University who has studied state attorneys general.” And the strategies are becoming more sophisticated. “
Plaintiffs want to encompass what they call the administrative state, the EPA, and other federal agencies that set rules and regulations that affect the U.S. economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group that filed the lawsuits.
But Congress has barely addressed the issue of climate change. Instead, he has delegated authority to agencies for decades because he lacks the expertise of specialists who write complicated rules and regulations and can respond quickly to changing science, especially when Capitol Hill is blocked.
West Virginia v. EPA, no. 20–1530 in the court file, also stands out for the entanglement of connections between the plaintiffs and the judges of the Supreme Court who will decide their case. Republican plaintiffs share many of the same donors behind the efforts to nominate and confirm five of the Republicans on the bench: John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.
“It’s a tweezers move,” said Lisa Graves, executive director of the True North Research Progressive Watch Group and a senior senior Justice Department official. “They are preparing the lawyers to present the litigation before the very judges they chose.”
The pattern is repeated in other climate cases filed by Republican attorneys general and now advancing through lower courts: Plaintiffs have the backing of the same network of Conservative donors who helped former President Donald J. Trump place more of 200 federal judges, many now. in a position to rule on climate cases next year.
At least two of the cases present an unusual approach that demonstrates the aggressive nature of the legal campaign. In these lawsuits, plaintiffs are challenging regulations or policies that do not yet exist. They want to anticipate President Biden’s efforts to deliver on his promise to move the country away from fossil fuels, while trying to prevent a future president from trying something similar.
Climate betting
The plaintiffs’ victory in these cases would mean that the federal government could not drastically restrict exhaust pipe emissions due to the impact of vehicles on the climate, although transportation is the largest source of greenhouse gases. country greenhouse.
Nor could the government force power companies to replace fossil fuel power plants, the second largest source of pollution from global warming, from wind and solar power.
And the executive could not take into account the economic costs of climate change when assessing whether to approve a new pipeline or similar project or an environmental standard.
Those limitations on climate action in the United States, which have pumped more global warming gases into the atmosphere than any other nation, would likely condemn the global goal of reducing emissions enough to keep the planet from warming more. of 1.5 on average. degrees Celsius compared to the pre-industrial era. This is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, droughts, heat waves and wildfires increases significantly. The Earth has already warmed an average of 1.1 degrees Celsius.
“If the Supreme Court uses this as an opportunity to really crush the EPA’s ability to regulate climate change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and affairs. at Princeton University.
The ultimate goal of Republican activists, say those involved in the effort, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health, safety. labor, telecommunications, the financial sector and more.
Known as the “Chevron deference,” following a 1984 Supreme Court ruling, this doctrine holds that courts must submit to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more experience than judges and are more accountable to voters. “Judges are not experts in the matter and are not part of any political branch of government,” Associate Judge John Paul Stevens wrote in his opinion to a unanimous court.
But many Conservatives say the decision violates the separation of powers by allowing executive officials instead of judges to say what the law is. In one of his most famous opinions as an appellate court judge, Associate Judge Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow large amounts of basic judicial and legislative power.”
The constitutional dispute is not necessarily political, because Chevron’s deference applies to the agency’s actions in both the Republican and Democratic administrations. But conservative hostility to doctrine may be partly rooted in the distrust of entrenched bureaucracies and certain types of expertise.
One month after the inauguration of Mr. Trump, his chief strategist at the time, Stephen K. Bannon, summed up one of his main goals as “deconstructing the administrative state.”
Chevron’s deference has long been a target for conservatives, according to Michael McKenna, a Republican energy lobbyist who worked at Trump’s White House. “The original crew has been steadily advancing toward a significant rewrite of Chevron for years,” he wrote in an email. “They are about to be rewarded with a substantial and material victory.”
The roots of this victory came in 2015, when Mitch McConnell, a Republican from Kentucky, became the leader of the Senate majority and led his party in a sustained campaign to deny President Barack Obama the opportunity. to appoint federal judges.
He refused to confirm the candidates, waiting for a Republican administration to fill the courts with judges who share their belief in minimal government regulation. It was also motivated by the dying coal industry in Kentucky, which could be eliminated by new EPA regulations aimed at curbing fossil fuel pollution.
“Fighting the EPA is‘ mother and apple pie ’in Kentucky,” said Neil Chatterjee, a former energy policy aide to Mr. McConnell.
The effort of Mr. McConnell said that Mr. Trump inherited not only an open seat in the Supreme Court, but an additional 107 judicial vacancies.
Then came Leonard A. Leo.
At that time, Mr. Leo was the executive vice president of the Federalist Society, the conservative legal group that helped secure the appointments of Roberts Court President and Associate Judge Alito to the Supreme Court and has served as the ideological and tactical engine behind the annulment efforts. home Roe against Wade.
Some of the many donors to the Federalist Society include Koch Industries, which has fought climate action; the Sarah Scaife Foundation, created by the heirs of the Mellon Oil, Aluminum and Banking Fortune; and Chevron, the oil giant and plaintiff in the case that created the Chevron deference.
Mr. Leo worked with Donald F. McGahn II, Mr. Trump in the White House and another longtime member of the Federalist Society, to examine and recommend judicial candidates for president.
Mr. McGahn was frank about his criteria. Speaking at the 2018 Conservative Political Action Conference, Mr. McGahn on the White House’s approach to undoing Chevron. “Well, it’s not a coincidence,” he said. “I guess it’s part of a bigger and bigger plan.”
“Here’s a coherent plan where, in fact, judicial selection and deregulation efforts are really the face of the same currency,” McGahn added.
Mr. Leo also helped lead the Judicial Crisis Network, a non-profit advocacy group that campaigned to help associate judges Gorsuch, Kavanaugh and Coney Barrett reach the Supreme Court and install dozens of other like-minded judges in the Supreme Court. lower courts.
In all, Mr. Trump appointed three Supreme Court justices, 54 appellate judges and 174 district court judges. By comparison, Mr. Biden has so far appointed 68 federal judges.
In 2020, Mr. Leo left the post of head of the Federalist Society to lead CRC Advisors, a right-wing political strategy firm. In this role, he has acted at the center of a constellation of advocacy groups and undisclosed donors who share a similar goal: to use the courts to advance conservative and libertarian causes.
One of the main clients of CRC Advisors is the Association of Republican Attorneys General. Another is the Concord Fund, the advocacy group that is the latest incarnation of the Judicial Crisis Network. The fund is also the largest financial support, by far, of the Association of Attorneys General of the Republic.
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