The Oceans Don't Care What Associate Justice Boof Says
One of the more depressing papers to cross the pixels recently here at the shebeen concerns the climate crisis and the Supreme Court. The authors, Samuel Moyn and Aaron Belkin, come to the distressing conclusion that, even if the Congress were to be transfigured into the greenest of green operations, the current Supreme Court likely would strike down any serious attempts to confront the climate crisis up until at least the point when there are flounder in the streets of Ashtabula. I am exaggerating there.
The Court’s conservative justices have an array of dubious legal interpretations at their disposal for dismantling climate change legislation, including an exceedingly narrow interpretation of statutes that empower federal agencies, an expansive reading of the Takings Clause and the Tenth Amendment, and a preferential application of the Commerce Clause. Given the Roberts Court’s track record of applying doctrine arbitrarily to suit preferred policy outcomes, it seems unlikely that climate change legislation would survive judicial review. As the planet continues to warm, the consequence of the Court’s dismantling of climate change legislation would likely be a series of decisions that would not only hollow it out but also enshrine legally dubious doctrines for decades to come.
Well, there will certainly be some spirited debates on that one day in the law-school classrooms of the University of California at 20 Fathoms.
The authors argue their case from the long history of conservative opposition to environmental regulations. They cite specific decisions and dissents from the work of Chief Justice John Roberts and Justice Neil Gorsuch to conclude that those two will be of little help. And they pay special attention to Justice Brett Kavanaugh, whom the authors believe would be the key vote striking down new regulations aimed at mitigating the climate crisis. Ol' Boof is going to be a thorn in the side of good government for several decades.
In Mexichem Fluor v. Environmental Protection Agency, [Kavanaugh] struck down a regulation that would limit the amount of hydrofluorocarbons (HFCs) that manufacturers can use. EPA had issued the regulation because HFCs contributed to climate change, but Kavanaugh ruled that the Clean Air Act did not explicitly grant the EPA the power to regulate HFCs. In EME Homer City Generation, L.P. v. Environmental Protection Agency, Kavanaugh held that an EPA rule setting forth a cooperative effort between states and the federal government to limit pollution from upwind states was in excess of the agency’s authority under the Clean Air Act. The Supreme Court later reversed Kavanaugh’s decision in a 6-2 vote, indicating just how far outside of the mainstream his decision was.
The paper is more evidence in support of my awful suspicion that the climate crisis already has passed beyond the capabilities of our politics and our political institutions to handle. When one side of the entire political system either denies that the crisis exists, or throws up its hands and makes preparations to insulate its donor class from the consequences, political solutions that enable concrete actions become either inadequate from the outset or doomed to fail in the longterm. The oceans don't care what Boof's opinion of the Takings Clause is.
In slightly sunnier climate news—and, yes, I saw what I did there, the University of California system has pledged to divest itself of its $83 billion worth of interests in the fossil fuel industries. This is a huge win for Bill McKibben and the divestiture campaign. It would be interesting to know if the decision of the university's regents had anything to do with the Trump Administration*'s decision on Wednesday to trample all over states rights regarding emission standards. Hey, Boof. Tenth Amendment, remember?
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