This op-ed was originally published by Slate.
On Feb. 28, the Supreme Court will hear oral arguments in the first of an expected wave of cases challenging governmental action to address the climate crisis. The court’s grant of four petitions seeking review in this case—two by coal companies and two by states—portends that the six conservative justices will erect significant barriers to meaningful climate policy and will continue to interfere with democratic governance in disregard of the rule of law.
The issue presented in the case, West Virginia v. Environmental Protection Agency, concerns the EPA’s authority to regulate pursuant to its mandate in the Clean Air Act. Oddly, there’s no regulation in effect for the court to review; instead, it will ostensibly review the interpretation of the act adopted by the Obama administration nearly a decade ago, which gave the EPA the authority to regulate greenhouse gases from power plants by requiring plants to implement measures targeting polluting energy sources and not just backend carbon emissions. While moving away from these energy sources is precisely what is necessary to respond to catastrophic climate disruption, it also conflicts with what remains the fossil fuel industry’s core business of fossil fuel production.
Following an initial proposal in 2014, the Obama EPA did issue such a potentially impactful rule, known as the Clean Power Plan, but it was short-lived because five justices granted fossil fuel companies’ and other industry groups’ and states’ petitions for an emergency stay in 2016. The justices took this extraordinary measure in a brief order on the court’s shadow docket, and without full briefing, oral argument, or a reasoned opinion. Notably, this was the first time the court had stayed a rule before a federal appellate court had the chance to review it. That move represented a sweeping assertion of judicial power and a harbinger of what we can expect in West Virginia v. EPA, particularly given the court’s now stronger conservative bent.