Not Tired of Winning Yet CLXII

In a 6-3 decision, the Supreme court in West Virginia, et al. v Environmental Protection Agency ruled that the Clean Air Act does not give the EPA the broad authority to alter the nationwide character of the energy sector.

Chief Justice Roberts wrote for the majority “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme…. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

The case is also interesting for its convoluted history, involving executive branch overreach by the Obama administration, curtailed by the Trump administration, and expanded again by the Biden administration, and then put on hold. On side-question decided in this case was whether or not merely putting on hold an illegal and unconstitutional regulation scheme rendered the case moot, or deprived the litigants of standing.

The case also is noteworthy for the foolishness of the dissenting opinion, penned by Justice Kagan.

She begins in fullblown climate hysteria mode, which I am almost embarassed to quote. She proffers as part of her judicial reasoning that “Climate change’s causes and dangers are no longer subject to serious doubt.”

Modern science is “unequivocal that human influence”—in particular, the emission of greenhouse gases like carbon dioxide—“has warmed the atmosphere, ocean and land.
To support this highly doubtful claim, she quotes a document called Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical Science Basis: Headline Statements 1 (2021).

Please note the vagueness and irrelevance of the statement. Whether the miniscule degree of human-caused warming, if any, justifies regulating carbon emissions from powerhouses is a political issue, and an issue not before the court. The issue is who has the authority to regulate: Congress, or the Bureaucracy?

Kagan goes on to say,

If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6.

Rising waters, scorching heat, and other severe weather conditions could force “mass migration events[,] political crises, civil unrest,” and “even state failure.” Dept. of Defense, Climate Risk Analysis 8 (2021).

And by the end of this century, climate change could be the cause of “4.6 million excess yearly deaths.” See R. Bressler, The Mortality Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021).

Please note none of the quoted words actually say what the surrounding text, which is Kagan’s, purports.

More to the point, please note these words come not from any a law, statute, opinion or even law review article. They are offered as a finding of fact over a point not in evidence in this case. Whether any quote here here comes from respectable scientific authority as opposed to a thinly-disguised lobbyist group, I leave as an exercise for the reader.

Next, her complaint is that the Supreme Court should not rule on the issue at all, on the grounds that since the Biden Administration may be issuing new rules in the future, meaning the issue is moot hence trivial.

She goes on to say that Congress intended the EPA to have authority under the Clean Air Act to alter any aspect of the energy industry allegedly having any remote effect on so-called greenhouse gas emissions.

Noting that the “stakes here are high,” Kagan lamented that Thursday’s ruling “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”

So the stakes are too high for the judicial branch to rule on whether the power-grab by the EPA (as that bureaucracy absurdly decrees carbon dioxide to be a pollutant)  is lawful, but also too trivial to concern the judicial branch.

Moreover, the dissent claims “First, Members of Congress often don’t know enough— and know they don’t know enough—to regulate sensibly on an issue.”

By that logic, how does the Supreme Court know enough to know that the Congress intended its explicit laws and regulations passed by a due process of law actually to be overruled by a nonpolitical unaccountable bureaucratic process?

The dissent is foolish because the Justice is unwilling to see the distinction between when it may wise or useful or expedient to do, and what it is lawful to do. The core axiom on which the idea of limited government, of federalism, of enumerated powers, of constitutional government, and indeed any and all systems of ordered liberty rests on the distinction between the expedient and the legal.

It is impossible that a schoolboy with one semester of Civics 101 not grasp this distinction, much less a first year law student, and scandalous that a Supreme Court Justice pretend not to.

This is a landmark case, as it creates a precedent for curtailing the authority of federal bureaucracies who hitherto have arrogated to themselves legislative authority to expand their powers without limit, without need of congressional authority. This is one of the main points which made Neil Gorsuch and Brett Kavanaugh—two of the nation’s leading judicial minds on administrative law  —so welcome as candidates when nominated.

The ruling may hamper President Joe Biden’s plan to fight climate change and could limit the authority of federal agencies across the executive branch.

Pray that the High Court continue in this vein. We may see a return to Constitutional government, if not in our lifetime, in those of our grandchildren.