Published in the Colorado Sun on August 6th, 2022
The Colorado Coalition for a Livable Climate is outraged by the recent Supreme Court decision eviscerating the Environmental Protection Agency’s ability to limit greenhouse gas emissions from power plants.
The decision is an outright attack on Congress that shatters our checks-and-balances system of government. It signals that we are in a constitutional crisis that will impede our ability to tackle the climate emergency.
There are multiple flaws in the Court’s decision on West Virginia vs. EPA. First, the Court chose to accept a case in which the EPA regulation in question — the Clean Power Plan — was repealed three years ago. That is a clear overreach of its authority. No court should have the ability to resurrect a repealed law or rescinded regulation, just to create new legal precedent at will.
Second, the Court majority abandoned the strict “originalism” to which it otherwise professes fealty and invoked the relatively novel legal theory it has deemed the “major questions” doctrine, that allows the court to engage in judicial activism across any spectrum of society, business, or law. This intrusion into both the executive and legislative branches functions violates the Constitution’s separation of powers.
Third, the majority’s reasoning calls into question Congress’s ability to legislate and delegate implementation of rules to regulatory agencies with the requisite expertise to protect consumers, workers, and the environment. It is unreasonable to expect legislators to have decades of professional experience in every aspect of a proposed bill.
In addition, the executive-branch functions of selecting agency heads and defining their missions — backed by career civil servants who are presumed to be expert in their field — shouldn’t be overruled by an unelected judiciary with neither the constitutional authority nor the expertise to do so. This is a runaway jury, as novelist John Grisham would say. Clearly, if our three branches of government do not respect each others’ powers, our Constitution ceases to provide the protection it has afforded for the last nearly 250 years.
This decision and others this year are the end result of a multi-decade process by corporations and wealthy individuals to politicize the Supreme Court by filling it with extremist, corporate-friendly justices. Fairness and principle had no place whatsoever in this lengthy plan to reshape the Supreme Court into one which values corporate rights over human and civil rights. The current court majority clearly prioritizes corporate interests over all others, including — in the case of West Virginia vs. EPA — the continued viability of Earth as a home for humans and other animal species.
Come October, the Court will once again exercise the “major questions” doctrine by ruling on whether automobile emissions standards are also beyond the bounds of regulatory oversight, likely returning us to days of low miles/gallon vehicles, and condemning air quality to be irreparably harmed. The current EPA-allowed limit on breathing particulate matter, which is generated primarily from power plants and internal combustion engines, is 11 pounds per day.
That’s right: It’s acceptable to breathe in 11 pounds of invisible soot every day. With the rollback of the Clean Air Act, and the forthcoming ruling to eviscerate emissions standards, how much more pollution will we breathe each day, and when did it become the job of the Supreme Court to decide this?
Ask your Congressional representatives what they can do to restore checks and balances, and the authority of both the legislative and executive branches of government. The fastest and surest way to do this would be to expand the Court to 13 or more justices to restore the balance that is now clearly lacking.
Court expansion would also require eliminating the filibuster rule in the Senate. Term limits for justices, curtailing the Court’s jurisdiction, and making judicial ethics — including mandatory recusal requirements and discipline applicable to the justices — should also be explored. Demand a plan to address the climate crisis from the legislative branch that can be implemented by the executive branch agencies and will survive this activist court.
Since the prospects for Supreme Court reform are slim, we must also do everything we can at the state level, by electing candidates who are committed to climate action. And we can contact our congresspeople and tell them we want their support on the Inflation Reduction Act.
We are in both a constitutional and climate crisis; the time to act is now. Failure to address climate change will have devastating consequences, not just for our children and grandchildren, but also for ourselves.
Kevin Cross, of Fort Collins, and Jan Rose, of Wheat Ridge, represent Colorado Coalition for a Livable Climate.