After WV v. EPA: 5 Ways We Keep Fighting For The Climate

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Climate and Energy

by Mark Schlosberg and Tarah Heinzen

Last week, the Supreme Court rounded out a term full of extremist rulings with West Virginia v. EPA. The court ruled that the EPA can’t mandate an energy sector transition from coal power to less polluting energy sources. This gift to the fossil fuel industry is a major blow to federal efforts to address the climate crisis. But we can’t let the corporatist Supreme Court push us over the climate cliff. Instead, we need to redouble our efforts. There is still so much we can do — at the federal level, in the courts and in states and municipalities across the country.  

Here are five ways we can fight for and win a livable planet: 
1. Pressure Our Other Branches Of Government Toward Climate Action

WV v. EPA pulled one tool from the EPA’s toolbox, but President Biden and his agencies still have plenty of options. Biden could declare a climate emergency, allowing him to, among other things, halt fossil fuel exports. He and his agencies could also stop approving new fossil fuel projects and new drilling on federal lands. They could stop advocating for industry scams like carbon capture, which will prolong our fossil fuel dependence. And Biden could use his bully pulpit to rally governors, state and local officials and heads of state toward bold climate action. 

Even after the Supreme Court’s decision, the EPA can still take meaningful action. It can adopt rules that will ratchet down climate pollution at fossil fuel plants. It can target other dangerous co-pollutants, leading to reduced climate pollution as well. And, while WV v. EPA focused on Section 111 of the Clean Air Act, the EPA can use Section 112 to classify carbon emissions as hazardous. This would open doors to further regulation. Food & Water Watch filed a petition calling on the EPA to do just this in 2019. 

Meanwhile, Congress still has the power to act decisively. We need to continue to work with and cultivate climate champions within Congress. Those champions can pass legislation that will confront the fossil fuel industry, stop fracking, ban fossil fuel exports and advance our transition to renewable energy.

2. Continue Taking The Fossil Fuel Industry To Court

Despite WV v. EPA, we have other options for holding our government and fossil fuel interests accountable in court. By law, agencies like the Federal Energy Regulatory Commission must consider the environmental impacts of projects like pipelines before approving them. These impacts cover climate change, air pollution and environmental justice. If FERC fails to fully consider them, courts can — and do — strike down approvals as unlawful. This can delay and sometimes kill projects altogether. 

Litigation is also key to adopting and protecting a wide range of Biden administration rules, including rules to strengthen these environmental reviews. Proposed rules could restore states’ rights to block infrastructure projects that will harm their environment. They could also require climate change disclosures and stop oil and gas leasing. 

With our allies, Food & Water Watch is on the front lines of these legal fights. We’re holding fossil fuel companies accountable in court for violating existing laws. We’re also pushing the federal government to finally start accounting for climate change and stop greenlighting polluting projects. All of this work helps to stop fossil fuel companies from locking us into decades more climate emissions. 

3. Organize For Aggressive Action At The State And Local Level

Beyond federal action, we have many options for action at the state and local level. For example, California is currently considering its near-term climate plans. As the fifth-largest economy in the world, the Golden State has a huge influence on the future of our climate. 

Food & Water Watch and over 150 of our allies recently submitted comments calling on Governor Newsom and the California Air Resources Board to chart a bold path. That includes a rapid transition off oil and onto 100% renewables, as well as a ban on all new oil drilling and gas infrastructure.

From Pennsylvania to Iowa, Oregon to Florida, we’re working with communities against fracking and factory farms, pipelines and power plants. We know firsthand that when communities organize and come together, we can win real change. 

4. Expose The Illegitimacy Of Today’s Reactionary Supreme Court And Fight For Court Reform 

The rightwing supermajority on the Supreme Court is the result of years of organizing by the Federalist Society and rightwing activists. The Court is now executing its reactionary agenda in a way that undermines environmental protections, civil liberties and ultimately, our democracy.

It’s no coincidence that five members of this majority were appointed by presidents who lost the popular vote in their elections. This majority has advanced deregulatory and dangerous agendas, while straying further from public opinion. On top of that, this fall, the Court will hear a case that could take away the people’s power to decide elections. Instead, it could place that power in the hands of state legislatures. Election protections and accountability have never been more important.

Our elected leaders cannot just accept this rightwing hijacking of the judiciary. Instead, they must fight back with every tool at their disposal. This means publicly attacking the legitimacy of these decisions. It means pushing to restore balance by expanding the number of justices on the Court. Food & Water Watch has joined coalition efforts to reform the Court. This must be a priority if we are to preserve our democracy.

5. Vote Like We Live Here

Finally, we need more people engaged in elections at the local, state and federal level. People need to register to vote and engage their friends, family, and neighbors — especially those who haven’t voted before. We need to generate a massive turnout at the ballot this November and at every ballot moving forward. 

To beat back the avalanche of corporate money shaping the courts and controlling legislatures, we need an overwhelming show of people power. We can’t win alone. It’s going to take all of us fighting like we live here to win the livable climate and just society we all want and need. 

The fight is far from over. Help us spread the word!

This Climate Case Confirms: The Supreme Court Is On A Dark Path

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Climate and Energy

by Mia DiFelice and Angie Aker

Since the 1970s, the Clean Air Act has protected us from a host of environmental pollutants. Does the Clean Air Act allow the EPA to create rules that reduce carbon emissions from power plants? It’s an easy “Yes!” for most of us, which is why the EPA announced the Clean Power Plan to transition away from dirty power plants in 2015. But it’s a resounding “No” from an industry that prefers to run unchecked. That’s why a group of attorneys general sued over it, and the Supreme Court shelved the Plan before it could even go into effect. 

This June, the Supreme Court issued a decision in West Virginia v. EPA. The case took on the never implemented and now irrelevant Clean Power Plan. The Court ruled that the EPA cannot use the Clean Air Act to regulate power plants’ climate emissions by mandating an industry transition to cleaner energy. In its ruling, the conservative supermajority on the bench has yet again shown their hand. These activist justices are using their position to push corporate interests, while eliminating a vital tool against climate change.

The Court’s Decision Is A Threat to Climate Action

Laws like the Clean Air Act are intentionally broad to allow expert agency regulators to adapt to new issues and tackle new problems. This is especially important for issues like pollution and, of course, climate change. Our recent history has made it clear — climate action is now too urgent to wait on action from a gridlocked Congress. 

The fight for sweeping climate action is far from over, but WV v. EPA will make such action all the harder. The ruling endangers the Biden administration’s goal to decarbonize U.S. electricity by 2035. This is especially concerning because power plants are our second largest source of climate pollution. On top of that, our largest emitter, transportation, can only decarbonize if we have the clean electricity to power it. This decision makes emissions regulations — as well as other, future environmental regulations — all the more vulnerable to judicial overreach.

“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.” 

— Justice Elena Kagan in her dissenting opinion.

We Have Major Questions About The Court’s Logic

The Court justified its decision by relying on the so-called “major questions doctrine.” This doctrine suggests that regulations are invalid if they address “major” political and economic issues and Congress has not explicitly told agencies how to act. By relying on this doctrine, the Court’s decision in WV v. EPA signals that future EPA rules — and actions from any other agency — are at risk.

But the major questions doctrine has a murky history and a supreme lack of logic. It flies in the face of so-called “textualism,” which conservative judges have relied on for decades to justify strict readings of statutes. This framework for interpreting law focuses on the text of the law itself. But as Justice Elena Kagan wrote in her dissenting opinion on WV v. EPA, “The current court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”

The doctrine also lacks any kind of test or threshold. And since the Court has not agreed on what counts as a “major question,” legal scholars point out that anything can be a major question if the justices on the bench deem it so. In short, the doctrine is a judicial power grab, encroaching on both Congress and the Executive branch. It threatens agencies’ ability to do their jobs — that is, implementing our most important laws.

Conservatives Captured The Court, And They Won’t Let Go Anytime Soon

For decades, conservative groups and funders — many backed by fossil fuel money — have worked to transform our judicial landscape. The same groups and funders supported the attorney generals suing in WV v. EPA; the campaigns that helped nominate and confirm five of SCOTUS’s current conservative supermajority; and dozens of other federal cases against climate policies. 

One such group is the Federalist Society, a national radical rightwing legal organization. All of the Republican-nominated justices on the bench have been either members of the Federalist Society or endorsed by it. The Society is funded by the likes of Chevron, Koch Industries and an array of conservative billionaires. Likewise, WV v. EPA was supported by the Republican Attorneys General Association, which is funded by our country’s biggest fossil fuel companies and coal executives.

WV v. EPA is the latest in a string of Supreme Court decisions from the Republican-nominated majority on the bench. These decisions quash Constitutional rights, public health and safety measures and decades-old precedents. WV v. EPA is part of the same antidemocratic judicial movement that has devastated our fundamental rights to bodily autonomy, our Fifth amendment rights, states’ ability to enact gun violence protections and more. 

And it likely will not be the last; legal experts expect that WV v. EPA will affect regulations on everything from consumer protection, to workers’ safety, to public health. When the Court returns to session in October, it will decide a slate of environmental cases through the same lens — further jeopardizing our right to a livable planet.

Our Fight For The Climate Is Far From Over

WV v. EPA underscores our urgent need for climate policies and federal action. The decision, while distressing, does not eliminate the EPA’s authority to regulate greenhouse gas emissions. The Biden Administration must issue the strongest rule possible to regulate climate pollution. Congress must also step up to the plate to stop oil and gas exports and new fossil fuel development. At the same time, states must pursue the strong climate policies that we need.

Food & Water Watch has been in this fight for 17 years. We will continue pressuring agencies and elected officials at all levels of government for climate action. We cannot afford to do anything else.

Everyone needs to know what’s at stake.