Posted on January 31, 2022 by Seth Jaffe
As everyone knows, the Supreme Court has teed up West Virginia v. EPA, which challenges EPA’s authority to regulate greenhouse gases, and Sackett v. EPA, which challenges EPA’s authority to define what constitutes a water of the United States. Betting money does not favor EPA in either case.
I don’t have any inside authority on what will happen and I don’t really have thoughts that haven’t been expressed by others, so I suppose that this can just be considered a rant, but I think it’s worth asking one simple question: What the heck is the Court doing? After all, no less a group of environmental radicals than the Edison Electric Institute has filed a brief in support of EPA’s authority to regulate GHGs. Of course, the EEI did so to ensure that the Clean Air Act continues to act as a shield against private tort actions over carbon emissions, but still.
It’s difficult to call this Court conservative. In its lack of respect for precedent, it’s arguably the most radical Court we’ve seen, at least in some time.
It’s difficult to call this Court libertarian. Look at its rulings in abortion rights cases.
Fundamentally, this Court is simply anti-government, almost to the point of seeming like a bunch of anarchists. However, it might be more accurate to lump this Court in with the Luddites. They are not per se anti-technology, but it does appear that this Court’s real complaint is with modernity itself. The world gets more and more complicated and interrelated and that requires complex solutions that necessitate government involvement. But this Court continues to march to the beat of its antediluvian drummer.
Good luck with that. Unfortunately, as this court attempts to return us to those halcyon days before the Constitution was even written, they are dragging the rest of us with them.
Of course, it was Chief Justice Marshall who said that
“We must never forget that it is a constitution we are expounding.”
Sadly, this court has forgotten.