Reflections on the Supreme Court partisan tilt

By Alan Journet – Thoughts on the Supreme Court  EPA Decision in W. Virginia vs EPA

This session of the Supreme Court, announcing alarming opinions on a variety of issues, comprises majorities of justices appointed by Republican Presidents and ratified by Republican Senators. This was potentially among the most partisan SCOTUS terms in history. The court seems to be making decision after decision based on right wing philosophical preconceptions rather than rational argument and appeal to the constitution or court precedent for justification. Among these decisions, possibly the greatest threat to life on this precious planet was posed by the decision regarding W. Virginia vs EPA where the court majority ruled (SCOTUS 2022a) that: “Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.” The majority argued that the EPA regulating power plan greenhouse gas emissions constituted such a substantial act that it required more than the basic charge to the EPA to protect our environment, but required a specific charge from the Congress that the EPA should address greenhouse gases.

Let’s explore the EPA authority.  To quote Meyer (2017):

“The Clean Air Act of 1970 tells the EPA to set standards for what kinds of toxic air pollutants can be released into the “ambient air,” either from factories or cars and trucks.

“The Clean Water Act of 1972 tells the EPA to set standards for what pollutants can be released into lakes, streams, and rivers, and it forces polluters to get permits to do so.”

These are the laws that delegate responsibilities to the Environmental Protection Agency to protect our air and water from pollutants. It is worth noting that nowhere does the charge to the EPA discriminate between major and minor issues or suggest that the authority of the EPA extends only to minor issues. Indeed, the charge would reasonably be interpreted by any rational analyst to imply that the authority of the EPA to address an environmental threat should rise as the severity of the threat rises. Since our elected representatives cannot possibly be expected to possess expertise on every issue that is of importance to society, it makes logical sense that Congress would delegate authority to develop rules and regulations about environmental and health protections (for example) to expert staff appointed to those agencies charged with managing environmental and public health.

In rejecting the authority of the EPA to regulate greenhouse gas emissions from power plants, the Supreme Court majority invoked the so-called ‘Major Questions Doctrine’ (CRS 2022) in which “the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear statutory authorization.” In the case of EPA authority over pollutants, invoking this principle seems patently absurd. The climate change consequences of global warming represent an existential threat to global natural ecosystems and the biodiversity that they comprise, as well as our agricultural, forestry, and fisheries. In short, life on the planet as we know it is at risk.

In applying to the EPA this “major questions doctrine” that suggests the authority of the EPA is limited to minor questions is specious and defies logic. Of course the Court fails to offer any definition that would allow objective discrimination between minor and major questions leaving them the option of using this criterion whenever they wish for whatever they arbitrarily and capriciously might decide is a ‘major’ question. Notably, this doctrine has never previously been included in a majority SCOTUS opinion.

The primary consequence of the Supreme Court decision is to undermine the ability of the EPA to impose restrictions. The vote reveals a Supreme Court that comprises a 6:3 majority of climate science deniers. This defines the court as far out of step with the mainstream of American opinion. Leiserowitz et al. (2022), for example, pointed out that according to studies conducted by the Yale Program on Climate Change Communication, the percentage of Americans falling in the categories of ‘Alarmed’ or ‘Concerned’ about global warming stood at just under 60% in September 2021, a clear majority.

Furthermore, in the 2007 case of EPA vs Massachusetts, where the EPA under George W. Bush was arguing it lacked authority to regulate greenhouse gas emissions from motor vehicles, the Supreme Court rejected the EPA claim that the major questions doctrine denied that authority. As a result of that historic 2007 Supreme Court decision, it was accepted that the EPA has this authority. What the Court of Chief Justice John Roberts has achieved, once again, is the rejection of accepted law. This principle, known as stare decisis, refers to the legal principle of determining points in litigation according to precedent (Savage 2021).

Despite the claims of several current justices during their confirmation hearings that they honored stare decisis, the pattern in decisions handed down by this court is one of rejecting settled law when it suits their preconceived partisan political philosophy.

While it is impossible to discern the real motives behind this decision, Supreme Court justices joining the majority decision seem to have accepted either the myth that climate science is a hoax, or that addressing the climate crisis is too costly or too disruptive. There is inadequate space here to address the proposition that climate science is a hoax. Suffice it to note that every court case premised on that claim has failed. Meanwhile, it is certainly difficult to determine what the cost of unimpeded climate change will be, especially when we recognize that our agriculture, forestry, and fisheries may be destroyed, an outcome that would render economic analysis irrelevant since we cannot attach a cost to something as essential as food that is not in short supply but actually unavailable. However, leading global reinsurance company Swiss Re (Swiss re 2021) has assessed the relative costs of inaction and concluded that failing to contain global warming could depress the global Gross Domestic Product over 18% by mid-century. Using current dollars, the global GDP in 2021 was assessed at $93.8 trillion annually (Statistics Times 2021). This, then, would amount to an economic depression of nearly $17 trillion. Flavelle (2021), meanwhile, suggested this number would represent a $23 trillion global annual economic depression by 2050. Morgan Stanley, hardly a wild-eyed leftist organization, indicated (Harmstone 2020): “Climate-related disasters have cost $650 billion to the global economy over the past three years.” This author also suggested: “With the green transition representing $50 trillion in investment over the next 30 years and $3-10 trillion in operating earnings, decarbonization could present a material economic opportunity for those on the front line.” This 30-yearl cost of action represents an annual cost of $2 trillion. At about 1/12^th the cost of inaction, this compares very favorably. From an economic perspective, we are clearly better off addressing the crisis than ignoring it and suffering the economic consequences of ongoing and accelerating global warming and climate change. There can be little doubt that the cost of inaction is far worse than the cost of acting. Yet, the U.S. Supreme Court sides with inaction!

In the climate crisis we are clearly confronted with an existential threat that has huge social justice implications in the short term, and ultimately similarly huge implications for life as we know it in the longer term. Once again, the right-wing extremist Court of Chief Justice John Roberts has taken a step in the opposite direction to that which sanity should suggest. This makes the task of countering that climate crisis ever more difficult.

To paraphrase Justice Kagan, writing in dissent,: ‘It’s called the Environmental Protection Agency for a reason.” The purpose of that agency is to protect our environment. Apparently, following the lead of science deniers everywhere who seek to undermine action, the majority on the Court seemingly have recast the agency. To them the EPA is now the Economy Protection Agency. The claim by Chief Justice Roberts in writing the majority decision that the ‘major questions doctrine’ demands that Congress make decisions regarding greenhouse gas restrictions and refer these to EPA beggars belief; the illogic and insanity of this opinion is transparently obvious. The entire purpose behind establishing the agency was to protect the environment; greenhouse gas emissions rules do exactly what Congress established the agency to do. Indeed, Kagan wrote: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time” (SCOTUS 2022b).”

As Eisenman (2022) wrote: “…the willfulness, arrogance and irresponsibility of today’s ruling is staggering. In W.VA vs EPA, the court violated the bedrock constitutional principle of division of powers.”

This Supreme Court may not have launched us collectively towards the bank of icebergs as happened with the Titanic in 1912, but assuredly, this decision has shifted the rudder and accelerated speed towards them.

With a growing litany of decisions that, for example, compromise the separation of Church and State, limit the ability if communities to adopt rules reducing the threat of gun violence, eliminate reproductive choice of women, and now challenge the authority of federal agencies to complete the tasks for which they were established by Congress, the Supreme Court has taken a substantial tilt towards right wing extremism. It is noteworthy that the majority on this court was nominated by Presidents winning a minority of the votes nationally and confirmed by a Senate majority that represents a minority of American voters.

That the Supreme Court is so unbalanced and unrepresentative is testament to a corporate blueprint to dominate democracy developed in 1971 by Lewis Powell in a memo to the U.S. Chamber of Commerce (Whitehouse 2021). As Whitehouse (2021) further noted, shortly after Powell drafted that memo, President Richard Nixon nominated him to the Supreme Court.

Small wonder that the favorability rating of the Supreme Court dropped some 15% even before the latest sequence of decisions that run against public sentiment in the nation (Pew 2022). Meanwhile, Gallup (2022) reports that as of September 2021, the Supreme Court ‘enjoyed’ a 53% disapproval rating. Then, by June this year (Jones 2022), it was reported that confidence in the Supreme Court had dropped to an all-time low, descending to 25% overall, with a score of 39% among Republicans and 13% among Democrats.

The bottom line is simple: If you find recent decisions of this Supreme Court outrageous, be sure to vote up and down the ticket. In addition to voting, the best way to overcome a U.S. Supreme Court that is out of touch with your priorities is with individual, local, and statewide action.

References Cited

CRS 2022. The Major Questions Doctrine. Congressional Research Service. https://crsreports.congress.gov/product/pdf/IF/IF12077.

Eisenman S. 2022. “A Fancy Piece of Homicide” at the U.S. Supreme Court. Counterpunch July 1, 2022. https://www.counterpunch.org/2022/07/01/248086/ .

Flavelle C. 2021. Climate Change Could Cut World Economy by $23 Trillion in 2050, Insurance Giant Warn. New York Times https://www.nytimes.com/2021/04/22/climate/climate-change-economy.html

Gallup 2022 Supreme Court. Gallup https://news.gallup.com/poll/4732/supreme-court.aspx

Harmstone A, 2020. Five Sectors That Cannot Escape Climate Change. Morgan Stanley Investment Management. https://www.morganstanley.com/im/publication/insights/articles/articles_fivesectorsthatcannotescapeclimatechange_us.pdf

Jones 2022. Confidence in U.S. Supreme Court Sinks to Historic Low. Gallup https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx

Leiserowitz A, Maibach E, Rosenthal S, Kotcher J, Neyens L, Marlon J, Carman, J, Lacroix K, Goldberg M 2022. Global Warming’s Six Americas, September 2021. Yale Program on Climate Change Communication. https://climatecommunication.yale.edu/publications/global-warmings-six-americas-september-2021/

Meyer R 2017. How the U.S. Protects the Environment, From Nixon to Trump. The Atlantic. https://www.theatlantic.com/science/archive/2017/03/how-the-epa-and-us-environmental-law-works-a-civics-guide-pruitt-trump/521001/.

Pew 2022. Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement. Pew Research Center. https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/

Savage, C 2021. ‘Stare decisis’ is likely to be much discussed in the abortion case. Here’s what it means. New York Times.  https://www.nytimes.com/2021/12/01/us/politics/what-is-stare-decisis.html.

SCOTUS 2022a. West Virginia versus Environmental Protection Agency. SCOTUSBlog https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/

SCOTUS 2022b. WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. Supreme Court of the United States. https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rHZlSZ3CqTa4/v0

Statistics Times 2021. Gross World Product.  Statistics Times. https://statisticstimes.com/economy/world-gdp.php

Swiss Re 2021. The economics of climate change: no action not an option. Swiss Re Institute. https://www.swissre.com/dam/jcr:e73ee7c3-7f83-4c17-a2b8-8ef23a8d3312/swiss-re-institute-expertise-publication-economics-of-climate-change.pdf

Whitehouse S. 2021 THE SCHEME 1: THE POWELL MEMO. Sheldon Whitehouse. https://www.whitehouse.senate.gov/news/speeches/the-scheme-1-the-powell-memo

Alan Journet, Cofacilitator of Southern Oregon Climate Action Now

Many climate activists have been watching the efforts of Julia Olson and Our Children’s Trust (OCT) for many years as they assist our youth in holding governments accountable for failure to act to protect the nation’s natural resources, managed in trust for future generations.

I start with the conclusion:  this is one of the most powerful and persuasive video efforts I have seen to make the case that our institutions are failing us and that we urgently need action to address the climate crisis.

This video offers an entertaining and informative compilation of video depicting the reasons the young people initially engaged in the action combined with coverage of the ups and downs of the last few years of the campaign ending with a Court deciding that the courts have no authority or ability to establish and monitor a program that would address the climate crisis.  Tellingly, we learn the court fully accepted two of the three basic elements required to compel judicial action: that the plaintiffs have been damaged and will be damaged by global warming and that greenhouse gas emissions resulting from human activity are responsible. Despite that, and the courts being the last resort, by a 2:1 vote the three-panel bench declined to act.  Following this defeat, an undeterred OCT has filed a motion that would amend their complaint to focus on obtaining a declaratory judgment that the nation’s fossil fuel-based energy system is unconstitutional.

I was particularly struck by the segment that so very effectively responded to the perceived need of the plaintiffs to demonstrate that the government knew of the problem and its cause but simply failed to act. Rather than responding appropriately to the science presented to them, Administration after Administration has for decades assiduously dug its heels in to promoting fossil fuels rather than clean renewable energy.  This transparently (now, at least) was undertaken despite frequent placating words from both Republican and Democratic Presidents about how they vowed to protect our climate and environment for future generations.

While it is clear that, as Julia Olson argued, none of this would have happened had it not been for the energy and commitment f the plaintiffs, I think I also evident that none of it would have happened absent the dedication, commitment, and abilities of Julia Olson.  Julia’s ongoing energy, enthusiasm, and support for the plaintiffs was conspicuous throughout the film.  Kudos to Julia Olson!

As I reflected on the film, the current failure of legislators and state agencies in Oregon to hold the gas companies accountable for the misinformation and disinformation that they use to promote their product came to mind. The depressing realization that legislators, agencies, the culpable corporation executives themselves, and now the courts will not acknowledge and respond appropriately to the climate crisis led me to what seems the only remedy: if our institutions will not hold the perpetrators accountable, then we must do it ourselves. We know that racial justice, gender equality, and LGBTQ rights, for example, have made huge progress over the years.  We have seen how rapidly, after years of activist pressure, the change in public acceptance occurred once inroads were made into the public perception of the constitutional requirement for basic human justice.  The message, it seems to me, is that those of us who are aware of the urgency of the climate crisis must redouble our effort to develop the public / political will for action on this overarching problem.  The data on communication tell us that most Americans simply do not talk about the crisis.  It is almost inevitable, therefore, that they will not consider it an issue demanding their attention. Our task, then, is to get out there and talk to people about the problem and what we can do to turn this glacier-bound ship around.

The film is available through Netflix.

Alan R.P. Journet Ph.D.
Cofacilitator,
Southern Oregon Climate Action Now
7113 Griffin Lane
Jacksonville OR 97530-9342
alan@socan.eco
541-301-4107
February 21^st  2022

Chair Smith Warner and members of the House Committee on Rules:

I testify as co-facilitator of Southern Oregon Climate Action Now on behalf of the over 1600 rural Southern Oregonians who are SOCAN. Our mission is to promote awareness and understanding of the science of global warming and its climate change consequences and motivate individual and collective action to address the resulting climate crisis. We do this within the critical framework of promoting social justice.

North Dakota is the only state with a SB. Founded in 1919, the Bank of North Dakota’s mission is to “promote agriculture, commerce, and industry” and “be helpful to and assist in the development of… financial institutions… within the State.”  But several other states have considered the possibility of developing their own such system.  Most of the NDSB’s lending is done in partnership with local banks and credit unions. Student loans are the only part of the bank’s lending in which it works directly with borrowers. Notably, it has among the highest bank credit ratings in the country.

With the Bank of North Dakota, financing is made available to support loans to students, farmers and others, while the bank’s profits go into the state budget to help provide more revenue for government programs.

An important concern for us is that the major banks serve the goal of making a profit while state banks can serve the interests of the people of the state.  One of the main obstacles in our effort to combat climate change is the fossil fuel corporations continue to promote misinformation both about their product and their pretended commitment to adjusting their business model to more sustainable products. A substantial problem in this arena is that our major banks continue to support these corporations with investments and loans, thus – like those corporations – working consistently to make money at the expense of the livability of our planet.

In addition, a State Bank can focus its attention on promoting social justice rather than merely promoting profits for the managers and shareholders.

For these reasons we strongly support HJR205 and urge its passage with a ‘Do Pass’ recommendation.

It’s important to note that HJR205 doesn’t create a state bank; it merely allows the democratic process to unfold by asking the voters f they wish to adjust the rules to allows Oregon to consider such a step.

Respectfully submitted

Alan Journet Ph.D.
Cofacilitator
Southern Oregon Climate Action Now

Alan R.P. Journet Ph.D.
Cofacilitator,
Southern Oregon Climate Action Now
7113 Griffin Lane
Jacksonville OR 97530-9342
alan@socan.eco
541-301-4107
February 15^th 2022

Co-Chairs Beyer and McLain and members of the Joint Committee on Transportation:

I write as co-facilitator of Southern Oregon Climate Action Now on behalf of the over 1600 rural Southern Oregonians who are SOCAN. Our mission is to promote awareness and understanding of the science of global warming and its climate change consequences and motivate individual and collective action to address the resulting climate crisis.

Transportation is the sector of our economy responsible for the largest share of regulated greenhouse gas emissions.  While this is mainly a function of the combustion of fossil fuel by vehicles, there is also a contribution from the materials employed in building our roads and bridges.  We know, for example, that cement is an extremely greenhouse gas intensive product as conventionally produced.  However, we also know there are ways to produce cement that could reduce this output.

For this reason, SOCAN endorses the concept of a pilot program to explore the potential for reducing emissions from materials production embodied in HB4139. The likelihood is that should such be found, the process could also become more efficient and less costly.

Respectfully submitted

Alan Journet Ph.D.
Cofacilitator
Southern Oregon Climate Action Now

Alan R.P. Journet Ph.D.
Cofacilitator,
Southern Oregon Climate Action Now
7113 Griffin Lane
Jacksonville OR 97530-9342
alan@socan.eco
541-301-4107
February 9^th 2022

Chair Wagner and Members of the Senate Committee on Rules

I write as co-facilitator of Southern Oregon Climate Action Now on behalf of the over 1600 rural Southern Oregonians who are SOCAN. Our mission is to promote awareness and understanding of the science of global warming and its climate change consequences and motivate individual and collective action to address the resulting climate crisis.

While campaign finance reform may seem far out of the sphere of interest of a climate activist organization, it is not! Indeed, for many activists in the climate arena, campaign financing is almost the underlying cause for the abject failure of legislatures across the nation, and the world, to act appropriately on the climate crisis. Although this crisis is evident to anyone who is conscious and has their eyes open, time and again legislative action is thwarted by those who have been elected as a result of campaign contributions from the very industries exhibiting business models that are causing the problem.  We are well aware that the corridors of legislatures teem with lobbyists from the fossil fuel industry. Meanwhile, candidates for office with a hint of sympathy for fossil fuel corporation are rewarded with huge campaign contribution support virtually ensuring their election. The problem is multiplied many-fold when a state has no limits on campaign contributions.  In such a situation, the fossil fuel sources of funding can provide almost unlimited funding to encourage legislator resistance to climate action that encourages a shift away from their product.

Many of us in the climate activist arena place campaign finance reform almost as a parallel priority.  Unless we manage to reduce the impact of the egregious financial impact on our electoral process and democracy overall, we will find addressing serious environmental and social issues such as the climate crisis, difficult to impossible.  The problem, of course, is that those profiting from the abuse of our water and air are the very entities contributing financially to prevent legislation from passing that would reduce their capacity to externalize costs and require internalizing their behavior and costs.

A civilized society functions because, through our elected officials, we mutually agree on a set of rules that harness the irresponsible behavior that some members of society would display absent those rules. The problem with unlimited campaign financing is that the very individuals and entities that seek to undermine our democracy and our civilized society in order to reap profits will support candidates who support their views.

Because our civilized society is under so much threat from those willing to throw money at the campaigns of candidates who will represent their anti-social attitudes and thwart sane legislative proposals, Southern Oregon Climate Action Now supports the efforts embodied in SB1526 and SB1561 to regulate campaign financing in Oregon.  Since the state is one of very few states that still allows unlimited financing of campaigns, passage of a measure to restrict this opportunity would enhance the reputation of the state substantially.  Although there those claiming ‘money is free speech’ as decided by the U.S. Supreme Court in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), we reject that assertion as patently absurd. Establishing campaign finance rules in the state of Oregon would not only enhance democracy in the state and our ability to address critical environmental and social issues, it would also enhance our reputation in this arena throughout the nation.

We therefore urge the sponsors of SB1526 and SB1561, along with the Senate Committee on Rules to develop a composite bill that serves the purpose of each and comprises the best elements of both proposals.

Respectfully submitted

Alan Journet Ph.D.
Cofacilitator
Southern Oregon Climate Action Now