Supreme Court Issues Unheard Of Ruling To Block Environmental Regulations

Supreme Court blocks Obama's climate plan. Is this the first sign of a new, more aggressive role for the Supreme Court?

Scalia: See all that snow? Global Warming isn't real! (Photo by Drew Havens)

Scalia: See all that snow? Global Warming isn’t real! (Photo by Drew Havens)

While we spent last night watching the people of New Hampshire recognize Donald Trump as the apotheosis of the Reagan Revolution, the Supreme Court tried to slip under the radar with an unprecedented power grab born in the amniotic fluid of the 1980s. The real question is whether this tactic reflects a special case, or if it marks the beginning of a newly aggressive Supreme Court spurred into action by the White House’s increasing reliance on executive action.

So last night, at the behest of lawyers from 29 states and a plethora of industry groups, the Supreme Court voted along party lines 5-to-4 to halt an emissions regulation issued last year requiring electric power plants to curb greenhouse gas emissions — and, by extension, to severely undermine the Paris climate agreement that rested in part upon U.S. commitment to this regulation.

The Supreme Court has never before blocked a regulation before it’s even been heard by an appellate court. Ever. The D.C. Circuit refused the stay in advance of argument and the Supreme Court reversed that. They reached down and took this solely to frustrate a regulation they won’t even have a chance to consider this Term. Wow.

Even though the regulation doesn’t require any concrete action until 2022, and the D.C. Circuit court had agreed to hear the case on June 2, the five Republican party representatives felt it prudent to halt the regulation even in its preliminary stages, where states were required merely to assess the severity of the problem. Presumably a public record of how polluted the air really is would be a buzzkill for the coal industry. From the New York Times:

In a second filing seeking a stay, coal companies and trade associations represented by Laurence H. Tribe, a law professor at Harvard, said the court should act to stop a “targeted attack on the coal industry” that will “artificially eliminate buyers of coal, forcing the coal industry to curtail production, idle operations, lay off workers and close mines.”

Hm. All of those sound like pretty good things. Well, not losing jobs, until you remember that coal’s dominance keeps those regions beholden to bad jobs in terrible working conditions (courtesy of disconcerting law firm practices).

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Also, Larry Tribe? Honestly, Larry, why even fight for Al Gore to be president if you’re committed to helping coal companies evade long-term environmental standards? This is a serious question.

But back to the real issue: is this going to become a trend? Imagine if, with barely any record to speak to, the majority of the Court could frustrate the implementation of regulations it disagrees with long before those regulations reach its steps. Before the parties reach negotiated settlements. Before an appellate court potentially renders the instant case moot. Before any circuit split. Not only has the Court interjected itself where it may not belong, but in the process signaled its intended ruling to unduly influence a lower court on a case neither has even heard yet. This is obviously not an advisory opinion but exhibits many of the pitfalls of one.

From the environment to health care to labor, there are a gaggle of regulations that the Court could muss with. One could say that the simple majority means the case was going to be decided this way anyway — eventually — but that also strips the Court of any pretense of non-partisan deliberation — an ideal Chief Justice Roberts claims to want to rebuild — and turns it into a group of legislators issuing knee-jerk votes before a record gets built. Because what exactly about this move stops the Court from hearing emergency stays on regulatory challenges before a district court?

Beyond agencies interpreting their mandates under existing legislation, this move appears to be a significant shot across the bow toward any executive action. With Congress expected to hold fast in Republican hands until at least the next round of redistricting and the Democrats on a 5 of the last 6 national popular election win streak, one expects more and more executive action in the coming years just to get anything accomplished. And, yes, Obama has resorted to executive action less frequently than his immediate predecessors, but the perception is everything and it’s also hard to say he hasn’t used his pen on more significant issues than many in the past.

If regulation and executive action in a gridlocked government were already fast becoming the new normal, is the Supreme Court jostling to take a seat at the table as the designated partisan counterforce? That’s going to shock some constitutionalists, but maybe that’s why they put out this out while America basked in Donald Trump’s victory speech: to gauge whether or not anyone would really even notice the Court’s morphing role.

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We could be looking back on this move in a few years as the figurative… canary in a coal mine.

Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions [New York Times]

Earlier: You Won’t Believe The Lengths One Firm Has Gone To Keep Benefits From Dying Victims