If the six Republican justices rule the way the oligarchs who support their extravagant lifestyles want, America could be a very, very different place in just a few years.

Similarly, the case of Loper Bright Enterprises v. Raimondo, could end most of the regulatory agencies that big polluters like the fossil fuel industry and the billionaires it’s made hate.

As Senators Whitehouse, Hirono, Feinstein, and Warren noted:

“This case is the product of a decades-long effort by pro-corporate interests to eviscerate the federal government’s regulatory apparatus, to the detriment of the American people.”

So, how could the Supreme Court put the EPA and other regulatory agencies out of business?

It has to do with something called the Chevron deference, a policy established by the Court decades ago to protect just such agencies.

Here’s how regulatory law — using the example of the EPA and CO2 — is supposed to work (in super-simplified form):

1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.

2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit atmospheric CO2, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak CO2 or methane (which degrades into CO2), etc.

3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.

4. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the CO2 emissions begin to drop.

This is how it worked with regard to CO2 until June of last year, a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established the Chevron deference to legitimize and defend our regulatory agencies.

That doctrine — articulated by the Supreme Court and reflecting a century of the will of Congress and presidents of both parties who signed regulatory agencies into existence — says that once a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior, they then have the legal authority to regulate and the courts should defer to the agency.

Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.

Then came a group of rightwing Supreme Court justices — including Neil Gorsuch — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision, taking the first big bite out of the Chevron deference.

Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2,” the agency lacks that power. And now it has lost that power, the result of that West Virginia v EPA decision last year.

The coal-, oil-, and natural-gas industries have been popping champagne corks for over a year now, as CO2 levels continue to increase along with the temperature of our planet and the violence of our weather.

In addition to Gorsuch, the Court’s decision-makers in West Virginia v EPA included Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others) that brought that case and are now bringing Loper v Raimondo.

And, of course, there’s Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but, since being wined and dined by rightwing billionaires, in 2020 wrote:

“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”

Giving us a clue to how this will probably go down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2; all 3 Democratic appointees opposed the decision.

Elena Kagan wrote that the Court:

“[D]oes not have a clue about how to address climate change…yet it appoints itself, instead of congress or the expert agency…the decision-maker on climate policy. I cannot think of many things more frightening.”

Pages: 1 2 3

  conservatives, corruption, supremecourt