Republican Drive to Tilt Courts Against Climate Action Reaches a Crucial Moment
Republican attorneys want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. Credit...Tamir Kalifa for The New York Times
A Supreme Court environmental case being decided this month is the product of a coordinated, multiyear strategy by Republican attorneys general and conservative allies.
WASHINGTON — Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants — pollution that is dangerously heating the planet.
But it’s only a start.
The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.
Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases.
“The West Virginia vs. E.P.A. case is unusual, but it’s emblematic of the bigger picture. A.G.s are willing to use these unusual strategies more,” said Paul Nolette, a professor of political science at Marquette University who has studied state attorneys general. “And the strategies are becoming more and more sophisticated.”
The plaintiffs want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group bringing the lawsuits.
But Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked.
West Virginia v. E.P.A., No. 20–1530 on the court docket, is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the same donors behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
“It’s a pincer move,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they handpicked.”
The pattern is repeated in other climate cases filed by the Republican attorneys general and now advancing through the lower courts: The plaintiffs are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.
At least two of the cases feature an unusual approach that demonstrates the aggressive nature of the legal campaign. In those suits, the plaintiffs are challenging regulations or policies that don’t yet exist. They want to pre-empt efforts by President Biden to deliver on his promise to pivot the country away from fossil fuels, while at the same time aiming to prevent a future president from trying anything similar.
The Stakes for Climate
Limitations on action in the United States against global warming could doom global efforts to avert the worst climate disruptions. Credit...Shuran Huang for The New York Times
Victory for the plaintiffs in these cases would mean the federal government could not dramatically restrict tailpipe emissions because of vehicles’ impact on climate, even though transportation is the country’s largest source of greenhouse gases.
The government also would not be able to force electric utilities to replace fossil fuel-fired power plants, the second-largest source of planet warming pollution, with wind and solar power.
And the executive branch could not consider the economic costs of climate change when evaluating whether to approve a new oil pipeline or similar project or environmental rule.
Those limitations on climate action in the United States, which has pumped more planet-warming gases into the atmosphere than any other nation, would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age. That is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases. The Earth has already warmed an average of 1.1 degrees Celsius.
“If the Supreme Court uses this as an opportunity to really squash E.P.A.’s ability to regulate on climate change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.
The ultimate goal of the Republican activists, people involved in the effort say, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.
Known as “Chevron deference,” after a 1984 Supreme Court ruling, that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. “Judges are not experts in the field and are not part of either political branch of the government,” Associate Justice John Paul Stevens wrote in his opinion for a unanimous court.
But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. In one of his most famous opinions as an appeals court judge, Associate Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
The constitutional dispute is not necessarily political, because Chevron deference applies to agency actions in both Republican and Democratic administrations. But conservative hostility to the doctrine may be partly rooted in distrust of entrenched bureaucracies and certain kinds of expertise.
The month after Mr. Trump took office, his chief strategist at the time, Stephen K. Bannon, summed up one of their top objectives as the “deconstruction of the administrative state.”
Chevron deference has long been a target of conservatives, according to Michael McKenna, a Republican energy lobbyist who worked in the Trump White House. “The originalist crew has been steadily moving toward significantly rewriting Chevron for years,” he wrote in an email. “They are about to be rewarded with a substantial and material victory.”
Filling the Bench
Senator Mitch McConnell led a Republican effort to deny President Barack Obama the opportunity to appoint federal judges.Credit...Gabriella Demczuk for The New York Times
The roots of that victory were planted in 2015, when Mitch McConnell, Republican of Kentucky, became the Senate majority leader and led his party in a sustained campaign to deny President Barack Obama the opportunity to appoint federal judges.