Rekubit Exchange:After It Narrowed the EPA’s Authority, Talks of Expanding the Supreme Court Garner New Support

WASHINGTON—The Rekubit Exchangelate afternoon sun washed over the United States Supreme Court building as a group of protesters hauled a 15-foot tall prop, modeled after the United States Constitution, through the nearby streets. Instead of “We the People,” though, it read “We the Corporations,” above logos of companies like Shell, Chevron and Amazon. Cardboard flames licked the edges of the banner, and nearby signs read “Supreme Climate Deniers” and “SCOTUS Kills.” 

The protesters were expressing their outrage over the court’s decision in West Virginia v. EPA, which curtailed the power of the Environmental Protection Agency to address climate change. 

The impacts of this decision reach far beyond the EPA’s disputed ability to enforce the Clean Air Act, and all corners of the environmental movement, from youth organizers at the Sunrise Movement to venerable advocacy groups like the League of Conservation Voters, are stepping up. In early June, prior to the EPA decision, the LCV announced its support for expanding the Supreme Court by four seats, saying that it would “allow President Biden to rebalance the court and appoint justices who will work for the people, not deep-pocketed polluters and their allies.”

“That was the first time that we’ve ever supported a Supreme Court expansion; it was a major decision that was months in the making and one that was not taken lightly,” said Doug Lindner, advocacy director for judiciary and democracy at the League of Conservation Voters. 

Expanding the court would require support from a Congress that is currently gridlocked, making adding the seats unlikely unless the Democrats take both houses in the November midterms. And a Biden spokesperson said expanding the court is “not something that he wants to do.” 

But as pressure grows on the Biden administration to take more action on climate, the LCV said there is both historical precedence for such a move, and growing support from citizens—especially after a historically contentious court term that included decisions that significantly expanded the right to bear arms and overturned the landmark Roe v. Wade, which had recognized abortion as a fundamental liberty protected by the Constitution. 

Biden took office amid fierce public debate on the make-up of the Supreme Court, in which Republican-appointed justices had gained a commanding 6-3 majority after President Donald Trump’s three appointments (and the Republican Congress’ denial of an appointment to President Barack Obama). Biden established a panel of legal experts to study the issue, and in December, the Presidential Commission on the Supreme Court delivered a report concluding that Congress has authority to expand the size of the court, although it took no position on whether to do so. The Commission did endorse other measures, such as a code of ethics for the justices and greater transparency on its case management and proceedings.

Lindner said his organization supports additional measures such as establishing court ethics codes, but “we’re supporting court expansion because we think that it is most clearly constitutional and supported by history.” 

Kenneth Foard McCallion, an environmental lawyer and the author of Saving The World One Case at a Time, said that court expansion was also on the table in the 1930s, when the Depression-era Supreme Court limited the federal government’s ability to respond to the dire economic conditions. “We’re facing an equivalent crisis now, perhaps an even greater one, through the environmental crisis,” said McCallion. “And the Supreme Court is really obstructing the opportunity for the federal government to help us save ourselves and the planet from climate change.” 

More justices could help the court become more effective for a nation of 330 million citizens that looks a lot different than it did when it was founded, he argues. In 1776, there were six justices on the bench, and a U.S. population of around 2.5 million. By 1839, with a population of 17 million, the number of justices settled in at nine. Nearly a century later, President Franklin D. Roosevelt backed off his efforts to increase the number of justices when the court “got the message” and started upholding New Deal legislation, McCallion said. 

“With more justices, we would have a much more efficient judicial system,” he said. In response to increased judicial demands, “many of the circuit courts have expanded their judges, certainly the federal judiciary district courts. It’s a multiple of what the original district courts were.” 

In the West Virginia v. EPA decision, the high court ruled that the EPA only has limited authority to regulate greenhouse gas emissions under the Clean Air Act, and steps that would truly alter the energy mix of the nation’s power sector would require a new act of Congress. But passing such legislation is unlikely in the current Congress, which is already deadlocked on climate action. If Republicans gain control of one or both chambers in the November midterm elections, the chances of any expansion of EPA’s authority on climate are nil. 

“All the trends are pointing to the Democrats losing at least one house of Congress, and maybe the House and the Senate,” said Bob Wilson, associate professor in the geography and environment departments at Syracuse University. “But even if it loses one house, that will close the door for federal climate action legislatively for the next two years and maybe longer than that.” 

Lindner added that the LCV is involved in elections in a meaningful way, and that recent decisions by the court will likely have a fundamental impact on the election. The LCV contributes directly to campaigns, while using grassroots organizing to educate voters and increase voter turnout. In the 2020 election, the league played a key role in endorsing and financially contributing to 13 successful congressional candidates, three in the Senate and 10 in the House. 

Offloading Regulatory Responsibility 

The West Virginia v. EPA majority decision, written by Chief Justice John Roberts, truncated the EPA’s regulatory authority, ruling that the way that President Barack Obama sought to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act was a functional overreach by the EPA.

In the ruling, the court invoked a relatively new approach to interpretation of federal agency authority, the  “major questions” doctrine, to rein in EPA’s power to act on climate change. The court asserted that on issues of great political and economic significance, it will look for explicit instructions from Congress when deciding the scope of EPA’s authority. This was a hard change in direction, McCallion said, considering laws like the Clean Air Act have been on the books since the 1970s, giving EPA authority to act on pollution that endangers public health and welfare. 

“Congress has already set forth the general policy in favor of environmental protection, and has recognized that industrial pollution is a major component of it,” he said. For decades the federal courts gave deference to agencies’ interpretation of their authority unless their actions were unreasonable, or “arbitrary and capricious.” 

McCallion said the West Virginia decision effectively offloads regulatory responsibility onto an already stymied Congress, and that relying on it to spell out specific regulatory policies is likely to result in no action at all. 

Moving forward, McCallion says the EPA will likely spend much time in the courts as it faces challenges on every attempt to institute policy regarding fossil-fuel burning plants. It will be up to the courts to decide whether Congress has given the agency sufficient authority to act on a case-by-case basis.

On October 3, 2022, when the nine justices reconvene for their next term, they will hear Sackett v. EPA, a case strikingly similar to West Virginia v. EPA, also posing questions about the EPA’s authority. Sackett, however, focuses on the Clean Water Act. If the court again rules based on the major questions doctrine, the EPA’s authority in water regulation could be largely curtailed. 

Lindner says this case may be a timely reminder to the American people. 

“We know from our own polling … that the American people care quite a lot about clean drinking water,” he said. 

As for the court expansion, “it isn’t just something we need to do to serve our environment or serve our policy preferences,” Lindner said. “This is something we need to do in order to restore one of the most historic wrongs ever perpetrated in our constitutional system against the will of the people.”