Over the past several decades, corporate lawyers, right-wing activists, Republican officials, and dark money groups with deep pockets have been laying the groundwork for a far-reaching legal assault on the federal government’s ability to regulate U.S. industry—including the oil and gas sector threatening the planet.
On Thursday, their investments bore major fruit.
In a 6-3 decision along ideological lines, a Supreme Court packed with right-wing judges handpicked and boosted by some of the same forces leading the yearslong crusade against the power of regulatory agencies—which conservatives often dub the “administrative state”—dramatically restricted the Environmental Protection Agency’s authority to rein in greenhouse gas pollution from power plants.
“The court deals yet another blow to the ability of the United States to democratically govern in the face of severe public policy crises.”
On its face, the ruling in West Virginia v. EPA appears limited in scope, pertaining to a specific section of the 1970 Clean Air Act and zeroing in on the reach of a single government agency.
But experts saw in the decision, authored by Chief Justice John Roberts, an ominous warning that the Supreme Court is ramping up its assault on the federal government’s capacity to act on matters ranging from environmental protection to workplace safety to public health to consumer protection.
Lawrence Gostin, a professor at Georgetown Law, argued that the high court’s right-wing majority wasn’t really concerned with the Clean Power Plan, an Obama-era zombie regulation at the center of West Virginia that never even took effect.
“It was the conservative court’s larger agenda to gut the regulatory state and decimate executive powers to protect Americans’ health and safety,” wroteGostin, who contended that “the ripple effects of West Virginia v. EPA are profound” and could hinder other key federal agencies such as the Centers for Disease Control and Prevention, the Food and Drug Administration, and the Occupational Safety and Health Administration.
“Congress doesn’t have a magic crystal ball that can predict every future health hazard,” Gostin added. “Nor does Congress have the expertise. That’s why Congress has delegated wide powers to health and safety agencies. They have the expertise and flexibility to safeguard the public from major threats.”
William Boyd, an environmental law professor at the University of California Los Angeles, agreed with Gostin’s analysis, telling Vox that he believes the West Virginia ruling “can be seen as part of a larger trend directed at restricting the ability of EPA and other agencies to protect health, safety, and the environment.”
“This starts at the top with the Supreme Court,” he noted, “but it will ripple through the federal judiciary as decisions accumulate and the jurisprudence that has taken over the last half-century to accommodate the regulatory state is diminished and hollowed out.”
The West Virginia ruling was a long time in the making, the product of coordinated efforts by GOP attorneys general, the fossil fuel industry, and shadowy organizations such as the Federalist Society.
For years, the industry-backed legal group has been building up a pipeline of far-right judges that Republican politicians have dutifully attached to the nation’s judiciary, pumping young, often under-qualified, and business-friendly judges into district courts, appeals courts, and the highest court in the land. (All six sitting conservative Supreme Court justices have ties to the Federalist Society.)
Among the organization’s donors is Koch Industries, the multinational oil and gas behemoth whose current billionaire leader, Charles Koch, and his late brother David have financed a vast apparatus of think tanks and advocacy organizations that’ve grown so influential that they frequently write entire laws for GOP legislatures to rubber stamp.
As The Lever‘s Andrew Perez reported earlier this year, groups linked to the Koch network took a serious interest in the West Virginia case, which was led by a group of Republican attorneys general and major coal companies. The Supreme Court agreed to take up the case last October.
“Koch’s Americans for Prosperity Foundation filed an amicus brief in the case arguing that the EPA should not be permitted to ‘impose its will on the nation through regulatory diktat,'” Perez observed. “Several more Koch-funded dark money groups have filed similar amicus briefs in the case. That includes the Cato Institute, the New Civil Liberties Alliance, the Competitive Enterprise Institute, and the Mountain States Legal Foundation.”
“The New Civil Liberties Alliance also received $1 million from the 85 Fund, a charitable foundation steered by Trump judicial adviser Leonard Leo,” Perez added. “A longtime executive at the Federalist Society, a conservative lawyers group, Leo also helps direct the Judicial Crisis Network, a dark money group that spent tens of millions leading the confirmation campaigns for Gorsuch, Kavanaugh, and Barrett.”
As Jane Mayer, the award-winning investigative journalist and author of Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, put it Thursday, the West Virginia decision is “payoff for 40 years of dark money from some of the planet’s biggest polluters.”
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