Three Things a 6–3 Supreme Court Could Do to Cripple Climate Policy

Next week, Judge Amy Coney Barrett will almost certainly be confirmed to the Supreme Court. You’ve heard a lot, and rightfully so, on the future of Roe v. Wade. But in an age of rampant deregulation by the Trump administration, the profound threat to the legal underpinnings of our environmental and climate policy cannot be overstated. The hard right knows it can’t repeal the last 50 years of environmental law directly, so they need a Supreme Court that will do the dirty work for them.

This might be how they’ll do it.

First, there will likely be a push to overturn Massachusetts v. EPA, where the Supreme Court found the agency may regulate greenhouse gases under the Clean Air Act. When the main text of the Clean Air Act was passed in 1970, climate change had yet to break into the political mainstream (even if it was well understood by the scientists of the time). Consequently, it didn’t reference greenhouse gases directly. It did, however, state that any type of “physical, chemical, biological, [or] radioactive substance” could constitute an “air pollutant” if EPA determined that it was harmful. They were also required to create emissions rules for new motor vehicles. In the late 90s, the Clinton Administration sought to include carbon emissions as part of their new vehicle emission standards. The Bush Administration shelved those standards, however, and several states sued.

The Court ultimately decided 5–4 that the definition of “air pollutant” was broad enough for the EPA to regulate carbon dioxide and other gases that contribute to global warming without needing additional legislation, and upon taking office, the Obama EPA worked swiftly to create strong vehicle standards. Justice Anthony Kennedy, who was in the majority, was replaced in 2018 by Brett Kavanaugh, who would seem to be a likely vote to significantly roll back Mass. v. EPA.

Were this case to be reversed, of course, a Democratic Congress could simply create explicit greenhouse gas standards.

A bigger concern, however, is whether the Supreme Court believes Congress can give agencies real rulemaking powers at all. Courts have recognized since the 1930s that Congress simply can’t do everything. As long as it gives agencies an “intelligible principle” to follow in a law, the agencies can make rules to carry out that law. Without that, it’s up to Congress to make incredibly detailed laws on thousands of technical, fast-changing topics.

New York City is blessed to have Congressional representatives who would work around the clock if they could to pass major laws, prepare for committee hearings, and handle constituent cases. If, as just one example, they suddenly have to find time to study the miniscule differences between sulfur hexafluoride and hydrofluorocarbons, Congress would never get anything done. That’s a feature instead of a bug for many of the deep-pocketed backers of this push, of course.

Finally, even if the Supreme Court doesn’t limit the ability of Congress to allow experts to make the technical rules, it could also limit the amount of leeway that courts give to the experts. When I helped draft the Climate Mobilization Act, we wrote it so that architects, energy experts, and other building professionals could determine the best way to shrink our carbon footprint. The New York State Climate Leadership and Community Protection Act (CLCPA) works in a similar way, but on a much broader scale.

We leave certain things vague, consequently, so the experts can fill in the gaps. Courts should only second guess that expertise in limited circumstances. The Supreme Court itself upheld this principle in Chevron v. NRDC in 1984. Opponents claim they’re trying to take back power from “bureaucrats,” but their solution would just replace one group of people without the expertise (legislators) with another group of people without expertise (judges). Unfortunately this is exactly what the Republican-appointed judges up and down the federal bench want to do, and they will use it to gut environmental protections in a way that threatens us all, but especially historically over-polluted communities.

The “fierce urgency of now,” as Dr. Martin Luther King Jr. said, is to recognize how precarious our progress is, and to see just how much we have to lose. So much of American history has been a struggle to ensure that all Americans could have a chance at meaningful and dignified work, adequate housing free from environmental hazards, and equal treatment at the hands of the authorities.

Uplifting public servants devoted to these goals must be our mission. We can’t keep telling ourselves the fiction that “the law” is some neutral set of high-minded principles that only the most brilliant among us can grasp. It is the product of our values, our political struggles, and the idea of what kind of nation we truly wish to be.