Opinion: The Supreme Court fails on the environment

By JONATHAN P. BAIRD

Published: 06-12-2023 6:00 AM

Jonathan P. Baird lives in Wilmot.

June is the end of the term for the U.S. Supreme Court and it is when the big decisions usually issue. We have already had one major environmental decision in Sackett v Environmental Protection Agency (EPA). In that case, the Supreme Court interpreted the 1972 Clean Water Act in a way that failed to protect the nation’s waterways. At least 50% of the nation’s wetlands could lose protection.

The EPA is now precluded from regulating discharges of pollution into wetlands unless the wetlands have “a continuous surface connection” to bodies of water that are described as streams, oceans, rivers and lakes. Prior to the Sackett decision, the Clean Water Act had protected wetlands that were “adjacent” to larger bodies of water. Very arguably, “adjacent” doesn’t require a continuous surface connection. The decision could open 59 million acres of U.S. wetlands to development.

The decision puts private profit over any public good. Birds will lose nesting areas, fish will suffocate, and many animals that thrive in wetlands will lose habitat. In our era of climate change, wetlands also play a buffer role with giant storms. They help to protect against sea level rise. They also help to filter and purify water that drains into aquatic bodies.

The Sackett decision follows on the heels of last summer’s decision in West Virginia v EPA. In that case, the Supreme Court limited the EPA’s power under the 1970 Clean Air Act to regulate carbon emissions from power plants.

Power plants are the second-largest source of greenhouse gases in the nation and the United States is the world’s largest emitter of cumulative greenhouse gas emissions. You do not have to be Greta Thunberg to know we need to be doing everything we can to tackle the climate emergency.

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The Supreme Court majority appears clueless about climate change. In their rarified atmosphere, climate change is apparently not happening or it is still denied. Stepping back, the Court’s majority remains focused on shrinking the power of federal agencies like the EPA. This has been the Federalist Society vision, also known as deconstructing the administrative state. So at a time of accelerating climate change, the Supreme Court weakens the government agency with the most responsibility for addressing the problem.

I would suggest that the real motivation of the Supreme Court is to undermine government regulation of business. They are acting in a thoroughly political fashion to satisfy their extreme right-wing political and financial backers, including from the fossil fuel industry.

Congress has laid out a broad policy of environmental protection and it delegated to the EPA the task of implementing policy through a series of binding regulations. The EPA has the repository of expertise. It has policy experts with years of experience in technical areas they regulate. As Ian Millhiser has written, “Delegating power to agencies ensures that decisions are made by people who know what they are doing.”

But the Court majority has not been happy with deference to administrative agencies like the EPA. The general rule has been deference to an agency’s interpretation of federal law when Congress was general or vague about the scope of an agency’s power. That way courts generally upheld agency regulations. This was based on a recognition of agency expertise.

In her dissent in West Virginia v EPAJustice Elena Kagan wrote, “The Court appoints itself - instead of Congress or the expert agency - the decisionmaker on climate policy. I cannot think of anything more frightening.”

Now that they have their six votes, the Roberts majority is invariably outcome-based rather than reasoned in accordance with long-standing judicial principles. They usurp power for themselves rather than ceding power to administrative agencies. I am old enough to remember when conservatives called the Warren Court “activist.” Judicial restraint is a concept that no longer applies to the Supreme Court.

Even leaving aside the rampant ethical issues that the Supreme Court is also failing to address, the deeper issue is a Court that has been captured by dark money interests like Mr. Crow and Mr. Koch. They haven’t hesitated to reverse precedent and remake America in a backward vision selfishly favoring the super-rich.

For all who care about the rule of law, this is nothing short of catastrophic. A new paper written by four law professors concluded that Democrats were unlikely to regain majority control of the U.S. Supreme Court until 2065 unless they expand the number of justices on the high court. It is hard not to think that 40 more years of this Court majority would turn America into an unrecognizable place.

In thinking about options, the option of expanding the Court from 9 to 13 justices deserves very serious consideration. There’s no constitutional prohibition and it is entirely within the province of Congress to do it. Adding four justices is a fair response to the conservative court-packing we have witnessed since the last year of the Obama presidency.

The number of justices on the Supreme Court changed six times before settling on nine in 1869. It is 154 years since that event. Maybe it is time for a change.

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