Compared to overturning Roe v Wade, the US Supreme Court’s decision this past week to gut the Biden administration’s fight against climate change won’t generate nearly the national public protest or visceral hostility.
But the ruling in West Virginia v EPA was every bit as ruthless, every bit as political, and will have a far-reaching impact on America’s climate leadership role in the world – as well as the role of the modern administrative state in US democracy.
As The Independent reported on Thursday, the court ruled that, while the Environmental Protection Agency had the authority to regulate the environment, “major questions” such as greenhouse gas emission caps must be decided by Congress.
The ruling throws into question the limits of regulatory agencies to filter expert advice from business, government and the public into cohesive policy on everything from the environment to public health to big business.
The vagueness of “major questions” in chief justice John Roberts’ majority opinion is a direct threat to any variety of imminent regulation, from auto emissions caps and minimums for clean energy usage on the national grid to corporate climate disclosure rules, all of which are needed to help transition the world’s second-largest polluting economy away from fossil fuels.
Never mind that Congress can barely agree that climate change exists, much less how to regulate it. Never mind that many of the nation’s biggest businesses, outside the narrow mining and coal interests who supported the suit, filed legal briefs in favour of the EPA’s role in fighting climate change. Those include Apple, Google, Tesla, even major electric utilities such as Pacific Gas & Electric (PG&E).
And never mind that the ruling effectively pre-empted future regulations on climate change and did not decide any existing law, which goes against the traditional legal concept of judicial restraint.
The ruling was so overtly political that, along with Roe and the other religious-focused rulings the court made this week, the US Supreme Court has planted its flag as an activist institution. This threatens the entire concept of checks and balances on which the three branches of the US government were founded.
For the US, and in particular the Biden administration, which has been unable to pass meaningful climate legislation in Congress, the ruling is another example of the gridlock in government that prevents the country from taking any sort of leadership at the global climate table.
A ruling in favour of the EPA would have allowed the government to proceed with plans to update its Clean Energy Act of the 1970s to account for reducing greenhouse gas emissions to put the country in line with the Paris Climate Accords of 2015.
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Without it, there is little hope the US will meet its Paris commitment to cut emissions by 50 per cent by 2030, especially as Republicans are expected to gain control of Congress in mid-term elections in November.
It’s a victory for the fossil-fuel industry and its backers leading the Republican states, and another crack in the rapidly expanding divide in American society and culture.
Now that the nation’s highest court has chosen sides and hamstrung the government, the waning hopes of those wanting to fight global warming lie with the private sector and in particular utilities, clean technologies and Wall Street.
Ironically, these are some of the very businesses the court is trying to appease, but who would have preferred it to leave well enough alone.
David Callaway is founder of Callaway Climate Insights and former editor-in-chief of USA Today