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How the Climate Movement Can Use the End of Chevron to Close Pollution Loopholes

It’s time for the Court to once again answer to the people

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The Supreme Court

Tuesday, July 09, 2024

“They were careless people,” F. Scott Fitzgerald writes of the idle rich in his time. “[T]hey smashed up things and creatures and then retreated back into their money or their vast carelessness or whatever it was that kept them together, and let other people clean up the mess they had made.” In our time, the disconnected and wealthy radical MAGA justices of the Supreme Court have now spent weeks smashing things—from our democracy to the ability of our public health agencies to keep us safe. Now it’s up to us to clean up the mess they have made.

Justice Elena Kagan has called out the Trump-built majority of the Court for hubris—the pride that comes before a fall. And in their hubris, the Court’s MAGA majority has opened the door for the climate movement to go after decades of agency doctrines and loopholes designed to benefit corporate polluters. In their rush to grant Big Oil the power to dismantle the regulatory state, they failed to consider how much the existing regulatory landscape has been shaped to water down enforcement of our most important environmental laws to the benefit of the fossil fuel industry. If the Court will no longer defer to agency interpretation of these statutes, the climate movement stands ready to go after every agency interpretation that has let the industry off the hook.

The truth is that the Supreme Court has almost always ruled to protect power and against the people, from defending slavery to upholding segregation to attacking the New Deal. Each time, the hubris of the elite lawyers on the Court has been met with people power and by Congress—reining in the Court to re-establish the promise of democracy. It is time, again, to do so.

The Court and the Climate: How We Fight Back

Start with the bad news: The Supreme Court has repeatedly made up new rules, Calvinball style, to attack environmental and public health agencies, over the last few terms. Here’s what we’re facing:

By overruling the “Chevron” doctrine, the Court has eliminated the obligation of federal judges to defer to expert agencies interpreting technical statutes, allowing right-wing judges to impose their own nonexpert and ideological views.
While attacking EPA’s Obama-era “Clean Power Plan” for power plant carbon pollution, the Court fabricated a “major questions” doctrine (PDF) that right-wing judges read as a license to reverse agency actions by claiming agencies lack clear authority for important actions unless Congress passes a new statute. The big climate actions the Clean Air Act (CAA) actually requires EPA to take are thus open to judicial second-guessing, made worse by the Chevron overruling.
Doubling down, the Court attacked clean water protections, and environmental protections generally, by ruling that even when clear environmental laws exist, the Court could still overrule agency actions if those actions limited states and private property owners from using their property.
The Court has also severely limited agencies’ ability to enforce basic laws against bad actors without going through costly jury trials and has made it easier to challenge agency actions even years after the fact.

With the basics of administrative law being scrambled to serve MAGA goals, all may seem lost. Fortunately, the Court rulings are not the unmitigated victories for fossil fuel interests that they seem to be, as every one of these decisions can be reversed or limited by a new statute via Congress.

Here’s why. The Court keeps insisting that agency actions must closely follow clear statutes passed by Congress. It seems eager to return to those laws. But let’s remember, those laws are not on the Court’s side. They were passed by Congresses that were deeply concerned with protecting the public, and if we take them seriously and apply them clearly, the outcome should not be what the Big Oil wants.

If Courts Want to Follow the Laws Literally, Let’s Use Their Logic to Our Advantage

Look at it this way. The big federal environmental laws have made sweeping changes to the federal agencies, and the Supreme Court just said that it is time to take their language seriously. First, take the Clean Water Act. It bans water pollution entirely unless EPA issues a permit and tells EPA the goal is to eliminate water pollution (PDF) by 1985. That’s not how agencies have implemented it, but it's clear text requires more. Second, the National Environmental Policy Act (PDF) orders that the entire federal government “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”

Sure, the agencies and the courts have instead treated this command as unenforceable, but that is not what the law actually says. The Clean Air Act repeatedly orders the use of the “best” approach to control pollution at every major pollution source. Agencies have imported all sorts of limits on that command to serve industry, but the statute is clear: Best means best and should bar fossil fuels in many sources now that zero-emission technology is available. The list goes on and on.

Put another way, since the big environmental statutes have been written, federal agencies have often been under the control of right-wing appointees who have ignored what Congress actually wanted. There are decades of agency doctrines, decisions, and guidance documents from those eras. If the Supreme Court now wants courts to stop deferring to what those corporate appointees wanted, fair enough. But that outcome does not necessarily put fossil fuel interests in charge. It takes us back to the clear text of visionary laws that the environmental movement fought for and enacted, from the Clean Air Act to the Inflation Reduction Act. If we take the Court at their word, then let’s seriously implement those laws.

How We Can Use End of Chevron to Close Pollution Loopholes

In fact, let’s start with Chevron itself. That doctrine emerged from a pro-fossil fuel decision made by Neil Gorsuch’s mother, who was Ronald Reagan’s de-regulatory appointee to run the EPA. Her team decided that even though the Clean Air Act requires permits applying the best controls for each increased pollution source, oil refineries, with their legions of pipes pouring out pollution, could avoid that requirement by calculating the net pollution decreases at one pipe against the increases at another. That ruling was a gift to the Chevron corporation and has made it harder to control air pollution ever since. It’s dead now. Why should oil companies get to keep polluting if the actual text of the Clean Air Act does not allow it?

And it’s not just refineries. As Evergreen has pointed out, the air permits that regulate every big industrial facility and power plant have been issued under decades of old guidance documents, rooted in Chevron deference, that systematically undermine the switch to zero-emission technologies. Agency heads appointed by Reagan, both Bushes, and Trump made it so. But there is no reason to defer to them anymore. For example, the agency has said that requiring sources to switch to clean electricity rather than fossil fuels “redefines the source” and isn’t required. But it made that doctrine up. The actual Clean Air Act says the “best” controls are required, including switches to “clean fuels,” and electricity is a fuel, as are cleaner alternatives than coal and fossil gas. Why should that decision persist if we take the CAA seriously?

Examples abound. Trump’s EPA tried to exempt major sources of toxic pollution from the Clean Air Act via agency interpretation, risking communities nationwide, but the CAA does not say that those sources can ever be exempted. Why should the agency be able to shield toxic sources from pollution reductions?

Or take another example: The Clean Air Act requires that EPA ensure that sources monitor to make sure they are not polluting communities, but EPA has limited monitoring requirements over the years. Perhaps it is time to return to the CAA’s actual, rigorous requirements.

Or look at vehicle pollution. The actual text of the CAA requires EPA to set standards for each class of vehicle engines, but for years EPA has allowed car companies to average different kinds of engines against each other based on vehicle size. That’s why SUVs can offset massive pollution against smaller zero-emission vehicles. Perhaps it’s time to stop allowing giant oil-hog vehicles to average out their harms, if we take statutory text seriously. There are seemingly endless examples like these, and now, decades upon decades of agency decisions to weaken or bend environmental laws to make them easier for industry stand open to challenge.

Challenging Rules in Court

Nothing stops environmentalists from fanning out and finding all those examples or insisting that the Court live up to its new rules and make agencies live up to their real legal obligations. And if the Court’s other new decision that agency actions can be challenged years after the fact applies in many of these instances (which will depend on each statute), lawsuits might even be possible. We will be backed by clear, sweeping, and powerful environmental statutes—and can insist those laws mean what they say. Will we win every case? Probably not. But can we still make progress, even as we pursue more reforms to the Court, and laws to limit its damage, absolutely. The Court’s decisions open a new field of struggle; they do not end the fight in fossil fuels’ favor.

The Supreme Court and its fossil backers can be made to regret the choices they have made. Not only will their power grab swamp the courts in technical, confusing cases, the actual statutes being interpreted are often stronger than the years of agency decisions interpreting them. Yes: We can expect right-wing judges to attack strong agency actions, and we need strong political action to strengthen our laws and fend off those attacks.

But don’t forget: There are decades of bad agency decisions, made by right-wing agency appointees, that now look open to challenge if they are applied going forward. Even as corporate actors scour the code looking for advantages, the environmental movement can match them, insisting that the law means what it says and that, if the Supreme Court insists on following this path, we need to take our country’s powerful environmental laws far more seriously than Neil Gorsuch’s mom did.

In a few years time, the Koch network may regret sweeping away all those years of corporate agency decisions—if we make them regret it. A re-elected President Biden can appoint judges and justices who can use the new tests set out by the Court to start reversing years of corporate giveaways and start implementing environmental laws with rigor. A re-empowered Congress can also rein in the Court and reverse its worst decisions and excesses. It can, for instance, restore the Chevron deference rule (and business interests may well start seeing why stability is in their interest too by then), as well as pass key Court reforms and put environmental rules back in place.

Moreover, in the meantime, the movement can insist that powerful corporate actors commit to decarbonization no matter what the arbitrary MAGA justices on the Supreme Court do next. No sensible company wants to make big investment decisions in a decarbonizing world economy based on what Sam Alito randomly declares James Madison might have thought about electric engines and solar panels. And the movement can insist as much no matter what the Court does. The Court is not the only one with power, and its power is fragile.

Judicial Power and People Power

Alexander Hamilton famously called the Supreme Court “the least dangerous branch” of the government because the Court’s actions could be corrected by Congress, the states, the president, and the people. Although the last few Court terms may have left some of us feeling powerless, it is still true that the Court cannot stand alone against the democracy. Let’s look over what we can do, in general, and then turn to how we can defend against the Court’s attacks on the climate.

This Court does not respect democracy or the rule of law, and its right-wing members are closely linked to fossil fuel and right-wing movement interests. Justices Roberts, Kavanaugh, and Barrett all worked to put George W. Bush into the presidency even though he lost the popular vote. Justice Gorsuch has been supported throughout his career by an oil billionaire. Justices Alito and Thomas have ignored calls to recuse themselves despite clear links to groups connected to the January 6 insurrection and despite taking gifts from unaccountable right-wing billionaires with cases before the Court. We do not need to pretend these officials are neutral observers. Their agenda is clear.

But we are not powerless. Remember that the Constitution grants Congress the authority to set the terms of review for the full federal judiciary. Congress can bar the Supreme Court and other courts from hearing entire classes of cases, specify what standards the courts must apply (PDF) to decide cases, and even change the number of justices on the Court. Congress can also prevent the Court from acting unaccountably: There is active legislation to add term limits to the Court and to enforce ethics standards after the Court’s many corruption scandals. Plus, the next president will likely appoint several new justices—how many is up to Congress—and can rebalance this radical Court.

So, we do not need to stand idly by as the right-wing justices continue to scramble the law and try to make themselves into an “imperial” government of last resort acting against the democratic wishes of the people. In the short term, we can take advantage of the Court’s newly-created legal doctrines to go after the fossil fuel industry’s favorite loopholes. And in the long term, we can build power with movements across the country—from union members to activists protecting reproductive rights and bodily autonomy, from democracy scholars to environmentalists—to implement necessary reforms to correct the court. Much turns on denying Donald Trump another term in office this November, and instead, electing a Congress and a president who can carry reforms forward.

The essayist Rebecca Solnit writes, “Your opponents would love you to believe that it's hopeless, that you have no power, that there's no reason to act, that you can't win. Hope is a gift you don't have to surrender, a power you don't have to throw away.” The people of the United States have long used their own democratic power to push back against the Court’s defense of privilege and power, and they have, in the long term, won again and again. In the face of the twin crises of democracy and climate change that we face, it is time again to show the Court that it must answer to the people.