The US judicial system issues opinions that are supposed to guide the rule of law and legislation — not every case is a one-off novelty, because prior decisions are designed to last for decades. But for thousands of millennia? By constraining the ability of the federal government to control greenhouse gas emissions, the US Supreme Court, in its West Virginia vs. EPA ruling on Thursday, ensures that its opinion will be legible in the geological record for eons to come.
That’s because it comes at such a crucial moment. The world’s climate scientists have been clear that unless nations around the world cut carbon emissions in half by 2030 the chances of meeting the temperature targets set seven years ago by the Paris Climate Agreement are essentially nil. To make that deadline would require nimble and focused action on every global front, and the Supreme Court just dramatically reduced the chances that the United States will meet its necessary goals.
Their ruling holds, essentially, that the Environmental Protection Agency can’t make regulations to enforce, say, the Clean Air Act; instead, the regulations have to be passed through Congress. As West Virginia’s attorney general put it, “What we’re looking to do is to make sure that the right people under our constitutional system make the correct decisions. . . . These agencies, these federal agencies, don’t have the ability to act solely on their own without getting a clear statement from Congress.”
But of course this is disingenuous, because the same people — right-wing activists — have made sure that Congress is so hobbled that it almost never acts. That’s what Citizens United accomplished, and voter suppression laws, and partisan gerrymanders. The power of the oil and coal states — whose attorneys general brought this case and a raft of other similar ones following on its heels — is essentially unchallengeable now. Even the ability of blue states like Massachusetts to, say, regulate automobile mileage may soon be in question by a raft of civil challenges brought by multiple plaintiffs.
This has been the goal of ideologues like the Koch Brothers for decades, and they have won — they’ve built, with cash and hard work, groups like the Federalist Society, and won the campaigns to put hard-right judges on the court. The recent spate of rulings is the fruit of that effort, and if the EPA challenge is harder to understand than the rulings undermining concealed carry gun permits or Roe v. Wade, it’s every bit as far-reaching.
So what to do?
Start by expanding the Supreme Court. Perhaps there are enough people outraged by the gun ruling, the abortion ruling, and the climate ruling to actually spur enough action to win the November midterms and elect members of Congress willing to vote to protect constitutional rights and the planet. With these aggressive and ahistorical rulings, the Supreme Court has lost whatever right it had to claim it was above politics. In 2016, then-Senate majority leader Mitch McConnell essentially packed the court when he denied Merrick Garland a hearing for his nomination; maybe more people will now understand the need to balance the court with justices who value the Constitution over their party. Additionally, President Biden must exercise his executive authority. He could, say, restrict leasing of federal land for oil and gas drilling, and that would probably pass muster at the court if challenged. But with gas around $5 a gallon, it would be politically hard.
Additionally, Biden must exercise his executive authority. He could, say, restrict leasing of federal land for oil and gas drilling, and that would probably pass muster at the court if challenged. But with gas around $5 a gallon, it would be politically hard.
Lastly, activists find ways to push Big Oil that don’t require action from Congress. Environmental advocates naturally focus on Washington as the easiest way to make change in this country; it’s our center. But if it’s walled off by ideologues, then we need to find other fronts to fight on. Finance is the most obvious: Banks and asset managers and insurance companies support the fossil fuel industry with loans, investments, and underwriting. Bostonians have the headquarters of State Street Global Advisors and Liberty Mutual Insurance close to hand; pressing them to end their backing for fossil fuel expansion projects may be more efficient than trying to pretend the nation’s capital continues to be a real forum for the democratic process.
It would be easy to retreat into despair, and indeed real despair is warranted. I can only imagine how the Bay State’s former senator John Kerry is feeling today — what words will he use to gin up global carbon action now in his role as the US climate envoy? But we have little time left to make a difference, so we must push where we can. Though the geological record will record the Supreme Court’s ideological rigidity, it must also reflect our willingness to stand and fight for the future.
Bill McKibben is the founder of Third Act. His latest book is “The Flag, the Cross, and the Station Wagon: A Graying American Looks Back at His Suburban Boyhood and Wonders What the Hell Happened.”