Is the EPA meant to confront climate change or not?

When the Supreme Court extends beyond its own expansive reach, not only are the basic functions of government in jeopardy but so is our system of checks and balances.

With so much of the attention on the Supreme Court in the past month focused on the leaked Hobbs v Jackson Women’s Health opinion, you may have missed an important Guest Essay in the New York Times last week from Sambhav Sankar from Earthjustice. (I mentioned this on the Politicology podcast’s Weekly Roundup last week.) He is calling our attention to two cases regarding the EPA and a little known, relatively recent Supreme Court legal framework called the “major questions” doctrine.

In West Virginia v EPA (possibly coming this week) and Sackett v EPA (likely next term), we see cases where the Supreme Court may be questioning the EPA’s basic authority to regulate industries that effect clean air and clean water. There are two important aspects here beyond the details and vagaries of the individual cases to consider:

1. How is the Court justifying hearing these cases at all?

2. How would/could/should the Court be constraining the EPA’s authority?

Beyond cases of original jurisdiction (which are uncommon), the Supreme Court receives about 7,000 petitions to hear cases every year and accepts about 150 of them. What is important about all of these is that there is, in every case, a dispute or controversy for the Court to resolve. Just because someone has sued the EPA does not mean something is unsettled. And in both of these cases, it seems the Court is looking for ways to constrain the ability of regulators to do their job and would be using the “major question” doctrine to do so regardless of whether there is a dispute or controversy to settle. No where in Article III of the Constitution does it say that the Supreme Court has the authority to raise issues "sua sponte" — so what exactly is a major question?

Arising from a 2000 tobacco case against the FDA, the major question doctrine is basically the Supreme Court looking at cases that have “major economic or political impacts” (however they define major) and saying that they have the authority to decide whether or not they believe that Congress could possibly have intended regulators to have authority over such significant questions. The court is usurping Congressional prerogative, questioning their intent, and imposing their own perspective on that legislative intent in ways that especially the conservative justices should find anathema to their originalist instincts. Both accepting these cases and how they might be decided represent deeply problematic behavior in the Court.

Created by President Nixon after he signed the National Environmental Protection Act in 1970, the EPA aggregated central regulatory functions into a central agency to ensure the possibility of comprehensive view of systems and issues that cross industries, sectors, and agencies. At a substantive level, if the EPA cannot regulate the production of greenhouse gases and chemical water pollution, our government essentially cannot regulate major human climate change effects. What is the EPA for if not for that? At a process level, we see a profound unbalancing of the checks and balances in American government.

Checks and balances are both about constraining power and providing accountability and also about keeping the right functions attached to the right roles. Often referred to as a mechanism to avoid a government built on trust, checks and balances demand that we trust each other to do our jobs while submitting to the open questioning and actual constraints on us overreaching what we have been asked and committed to do in our roles.

When the Supreme Court reaches beyond its already extensive bounds, what we see here is minority rule getting smaller. More power in the hands of fewer people using the least democratic features of our republic to promote a narrow agenda wherever they can. Not only the judiciary taking regulatory functions away from an executive agency. Not only a court usurping Congress’ responsibility for agency oversight. Not only the judiciary period. Not only the Supreme Court. Not only the ability of the Supreme Court to select its own cases. But its ability to essentially decide its own scope of jurisdiction based on what it feels is important.

The Supreme Court needs and has wide authority to decide what matters but based on settling disputes and controversies, not proactively and ideologically looking for them. We have a set of deeply activist Conservative judges dominating the Court combined with an increasingly brazen willingness to push well beyond norms and boundaries that are meant to be conservative — irony abounds. Its focus on precedent and settling controversy are intentionally conservative principles meant to balance the more openly activist and reactionary behaviors of other elements of government like the House of Representatives. Based on this posture, the Court is on the verge of unmaking much of the most community-centered law that has made America more inclusive, safer, and healthier in the last century with very little short-term recourse.

The long-term recourse is to engage in the cultural reckoning that has gotten us to this point and get society onto a profoundly different path. It’s not a response we’re craving, not a swing of an ideological pendulum in danger of snapping off back to liberal imposition, but to take the orthogonal path in the direction of a more generative future. Move in the direction of a society connected to human need and focused on human flourishing that sees public systems and markets as tools to expand humanity rather than view humanity as asset to leverage in order to create and increase wealth.

In the mean time, we need to look beyond the essential and prominent cases to some of the less well-known, but wide-ranging ones that will effect the future of humanity just as profoundly and have the potential to remake the very function of the Supreme Court within the balance of American democratic government.