Supreme Court guts Clean Air Act, puts every government regulation in jeopardy

Emissions rise from the smokestacks at the Jeffrey Energy Center coal power plant as the sun sets, Sept. 18, 2021, near Emmett, Kan. The right-wing-dominated Supreme Court says the EPA has no power to regulate emissions by power plants, setting the stage for a speed-up of climate change. | Charlie Riedel / AP

Continuing a right-wing rampage that has already seen abortion rights gutted, the open carrying of guns given free rein, eviction moratoriums killed off, and coronavirus controls eviscerated, the Supreme Court on Thursday gave big fossil fuel corporations the freedom to fill our air with more planet-warming carbon dioxide.

In a 6-3 ruling, the conservative majority announced it was stripping the Environmental Protection Agency of its ability to regulate emissions from power plants. The move destroys the core of the Clean Air Act of 1970 and puts the Biden administration’s plans for fighting climate change in jeopardy.

And with its broad denunciation of the power of government agencies to enact rules and standards without specific and down-to-the-last-detail instructions from Congress, the court has also potentially put every regulation on the chopping block—not just when it comes to emissions, but also things like safety conditions in the workplace, fair wages, exposure to toxins, environmental protection, what bathroom transgender students can use, which people can cast a ballot and how, and more.

The decision is a preview of what the far-right and its corporate backers envision for the country.

Victory for fossil fuels, loss for life on Earth

The ruling is a major win for polluting energy corporations. EPA data shows that the power sector is the second-largest source of greenhouse gas emissions in the United States, but now it will be largely beyond the reach of environmental regulation.

Corporate energy giants will be able to fatten their profits by saving on costly emissions control measures in their plants and offload the cost of environmental contamination onto the rest of us—via dirtier air, increased respiratory health problems, and a speed up in climate change and all the problems it brings.

The decision in West Virginia v. Environmental Protection Agency, written by Chief Justice John Roberts, sides with big energy producers and Republican attorneys general at the state level who have been trying for years to tie the hands of the EPA.

The court declared that the EPA is severely limited in its ability to regulate the fossil fuel sector as a whole and that it can only deal with major pollution issues that crop up at specific individual plants. It also rules out pursuing other climate change-combatting measures through the EPA, such as a carbon cap-and-trade market.

Justice Elena Kagan, who wrote the dissent of the three Democratic-appointed justices, warned, “Today, the court strips the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”

She wrote that right-wing justices had appointed themselves, “instead of Congress or the expert agency [EPA],” to be the “decision maker on climate policy.” Kagan said she “cannot think of many things more frightening.”

Climate change activists and environmentalists expressed outrage—but no surprise—at what the right-wing majority did.

The executive director of Food and Water Watch, Wenonah Hauter, characterized the ruling as “part of a broad-based assault on the ability of regulators to protect our air, water, and climate.” She said the decision has been “long-sought by corporate polluters, industry-backed think tanks, and politicians who serve monied fossil fuel interests.”

“A Supreme Court that sides with the fossil fuel industry over the health and safety of its people is anti-life and beyond broken,” John Paul Mejia, a spokesperson for the youth-led Sunrise Movement, said immediately after the decision was announced. “We cannot and will not let our Democratic leaders stand by while an illegitimate court and the GOP go on the offense.”

The Biden administration’s promise to put the nation on a path toward 100% clean electricity by the middle of the next decade may be sunk because of the ruling, as the president’s plan hinged on using tougher regulation to speed up the transition away from fossil fuels like coal.

It was a continuation of moves made by the Obama administration under its “Clean Power Plan,” which never went into effect thanks to endless lawsuits by power companies and Republican-run states, an earlier Supreme Court block, and a repeal by the Trump administration. The current court decision stems from one of those previous lawsuits.

Environmental groups were already skeptical of the scheme even before the Supreme Court’s ruling, however, because the government, even under Biden, has also approved many new oil and gas leases on public lands recently—moves seemingly at odds with the goal of reducing fossil fuel reliance.

Regardless, the entire plan now faces a rethink. Roberts wrote in the majority opinion that “capping carbon dioxide emission at a level that will force a nationwide transition away from the use of coal to generate electricity” might sound sensible, but that the law does not allow it.

The impact of the court’s decision could go far beyond just emissions controls and sets a precedent for destroying the power of government to regulate almost anything.

Part of a bigger corporate offensive

Among legal and constitutional scholars, the EPA case has been called the “administrative state” case.

The term “administrative state” is a somewhat obscure one outside the circles of political science and public administration scholars, but it’s one Republicans use regularly in their meetings with disdain.

Dwight Waldo, a professor and former government price control official, first coined the term “administrative state” in 1948. He wrote that public servants should be informed, active agents of change dedicated to improving people’s lives and strengthening democratic participation.

He asserted that the orthodox notion of bureaucrats who just mindlessly follow orders from the top was incompatible with democracy. Bureaucrats had a responsibility to serve the public, not just their political masters.

The most important principle of the administrative state idea was that government cannot be run like a business. Democracy, the Constitution, and public interest required adherence to higher criteria than simply watching out for the bottom line or following orders.

Republicans have long detested the notion of such a government and have systematically set out to destroy it. The Trump administration, in particular, took steps to undermine the ability of agencies (like the EPA) to pursue the public interest, and instead wanted them to follow edicts issued by the president or his appointees—essentially, a more dictatorial arrangement.

At the 2017 Conservative Political Action Conference, top Trump advisor Steve Bannon laid out plans to strip apart the power of federal government agencies to regulate big business by reshaping executive branch cabinet departments and the courts.

Enumerating all the cabinet appointments that the incoming President Trump had made at that time, Bannon stated that the people chosen were all “selected for a reason…deconstruction of the administrative state.”

Bannon continued: “Every business leader we’ve had in is saying it’s not just taxes, but it is also the regulation… the way the progressive left runs, if they can’t get it passed, they’re just gonna put in some sort of regulation in…in an agency.” He vowed, “They’re all going to be deconstructed.”

What followed was a shock-and-awe campaign of rapid-fire executive orders, policy guidance memoranda, and a directive to drop two regulations for every new one implemented. Demanding adherence to presidential authority and extreme loyalty on the part of cabinet secretaries and other officials, the Trump White House made it clear that it viewed the entire American government as an instrument to be wielded by the man at the top.

Bureaucrats that don’t obey? They were shown the door. Courts that won’t validate decisions? Pack the judiciary with the most pro-business judges you can find so that you win next time. Total authority and unrestricted executive power was the goal.

Think tanks like the Heritage Foundation provided the intellectual ammunition, publishing claims that the “growth of the administrative state can be traced, for the most part, to the New Deal (and subsequent outgrowths of the New Deal like the Great Society).” Any pro-people policy that has come about since the 1930s was lumped into the trash pile.

And because presidential administrations come and go (though Jan. 6, 2021, showed that the Republicans wanted to do away with even that reality), the ultimate weapon in this war was to be the Supreme Court.

Speaking of Trump’s appointment of Justice Neil Gorsuch at the 2017 CPAC meeting, White House Chief of Staff Reince Priebus said the Republicans would use the courts to cement their policies in place for a long time to come: “We’re not talking about a change over a four-year period. We’re talking about a change of potentially 40 years of law.”

Republican strategy comes to fruition

Thursday’s decision to gut the power of the EPA is proof that the GOP-corporate offensive against all government regulations is well underway. This ruling is a goalpost along the route that the extreme right ideologues and servants of big capitalists in the Republican Party want to take the country down.

Today, it is the struggle to reverse climate change which is under attack, but so many other things will follow.

The situation calls for massive mobilization at the polls in November and immediate pressure on elected officials to use the power of new legislation to codify regulatory power and make it resistant to elimination by the courts.

When it comes to the climate, a coalition of over 1,200 environmental groups, People vs. Fossil Fuels, is calling on Biden to use the authority he still has to “declare a climate emergency and stop new fossil fuel leases, exports, pipelines, and other infrastructure today.”

It pointed to the powers of the presidency under the National Emergencies Act and the Defense Production Act, saying Biden could “also halt crude oil exports, stop offshore oil and gas drilling, restrict international fossil fuel investment, and rapidly manufacture and distribute clean and renewable energy systems.”

Hauter, of Food and Water Watch, said that “while this ruling intends to hamstring the federal government’s ability to regulate dangerous emissions, it does not signal the end of climate action.”

State-level regulatory action now moves to the frontline, especially where Democratic governors and legislative majorities prevail. There, in alliance with growing climate justice movements, progress is being made to achieve carbon neutrality. Such efforts now have to expand further.

Hauter vowed that the climate movement “must and will continue to pressure agencies and elected officials at the local, state, and federal levels to enact policies that ensure a swift reduction in climate pollution and an end to the fossil fuel era.” She said not even the Supreme Court can “stand in the way of the fight for a livable planet.”

It won’t stop the right-wing majority on the court from trying, though. Still expected in the coming days is a decision on a major immigrant rights case, and the Supreme Court has also announced it will hear a case that could give Republican state legislatures unchecked power to suppress votes via gerrymandered districts—setting the stage for widespread election fraud in 2024.

It all makes getting out the vote for this fall’s midterms even more essential.

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CONTRIBUTOR

C.J. Atkins

C.J. Atkins is the managing editor at People's World. He holds a Ph.D. in political science from York University in Toronto and has a research and teaching background in political economy and the politics and ideas of the American left.