SCOTUS on EPA; and Independence Day 2022

“…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…“ – the U.S. Declaration of Independence

On Thursday of last week, the U.S. Supreme Court ruled on West Virginia v. Environmental Protection Agency. The decision put limits on EPA’s regulatory authority to control carbon emissions, triggering a flurry of news reports and analysis. For the most part, media narratives described the decision as a setback for efforts to deal with climate change. Some quarters saw instead a welcome correction to federal over-reach into Americans’ lives and affairs. Generally speaking, the analysts either impugned the (majority) justices’ motives or lauded them for their courage and integrity as protectors of Americans’ rights. There was little in-between.

A few reflections:

The decision didn’t come as a surprise. Though draft texts were not leaked as in the case of Roe v. Wade, the expectation was that the ruling would go against EPA.

The intent behind the decision is open to interpretation (and may never be fully known). But it seems to be more far-reaching than simply declaring a winner and a loser.

Justices themselves were not of one accord. The vote was split 6-3. And at first glance, differences in individual views appeared to be vast. Consider these quotes (from the Washington Post):

Gorsuch: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Kagan (writing for herself and for Breyer and Sotomayor) “The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy…I cannot think of many things more frightening.”

But look a bit deeper. There’s actually agreement here. In this decision and parallel rulings with respect to CDC and OSHA, the justices seem to be saying that sweeping regulatory authority can’t be left to a small handful of unelected civil servants, whether in the courts or in the agencies. Instead, they’re asking that Congress step up to the role envisioned by the Declaration of Independence – specifically that members of Congress roll up their sleeves and actually come to grips with climate change, the pandemic, racism, abortion, the right to bear arms, and other thorny issues, in each instance seeking- and hammering out compromise that reflects the will and needs of the governed, and enacting responsive legislation. They’re reminding members of Congress that they were elected to work together to achieve desired societal ends (life, liberty and the pursuit of happiness come to mind). They weren’t sent to Washington simply to fight each other and then look to the courts to declare winners and losers, as if politics were some kind of sports event and justices merely the referees.

This would seem to be a stretch for Congress, given the polarization and rancor characterizing recent sessions. For years, policy analysts have informed the rest of us that Congress’ job is less that of passing legislation, than that of ensuring that flawed legislation isn’t enacted. In recent years, however, that tendency has been carried to an extreme, culminating in what Francis Fukuyama has termed a vetocracy – a dysfunctional system of governance whereby no single entity can acquire enough power to make decisions and take effective charge.

No one is happy or complacent about this. That holds for incumbents in any branch of federal government – executive, legislative, judicial. It holds for both leaders and staff. It holds regardless of political persuasion. All participants are wearied, frustrated, fearful, angry. High-minded, intelligent, thoughtful, dedicated men and women populate, even dominate the chambers of the Supreme Court, the halls of Congress, the headquarters and field offices of the agencies. All want to do the right thing. The challenge lies in finding a structured, stable path to walk back the current animus and get to a more workable, sustainable place.

Progress starts with you and me. There is no roadmap. But one starting point is clear. Thanks to the generation that gave us the Declaration of Independence and all the generations in between, we live in a free democracy. We have the government we want, the government we asked for, the government we created through myriad action and (far too much inaction) over years of elections, through times of scarcity and plenty, across seasons of peace and war. The present situation, with all its problems and opportunities, is the present we created. We have the same power over the future. What happens next depends upon want we do, and what we ask of those we elect and install across government at federal and state levels. It depends upon whether we work to fix problems instead of fix blame, whether we choose to keep moving forward, meet present and new challenges head on versus waiting to receive or take any credit we might think we are due. If they are to do their jobs, the courts, the Congress, and the federal agencies need an engaged public that both provides support and calls for accountability.

(Closer to home? As we contemplate West Virginia vs. the Environmental Protection Agency, those of us in meteorology, or the broader geosciences, might reflect on our role in shaping the decision and in redefining its significance. Our research and services led first to scientific awareness of human impacts on climate and the climate change and global change underway. We have worked for years to expand that awareness from our small group of science- and service providers to the public at large, worldwide. We’re in part the reason the court case arose in the first place. But we’re also a major reason that it didn’t occur in a vacuum, but rather in the context of a world mobilizing to live more sustainably. Fact is, that mobilization and the attendant progress haven’t really been slowed so much as a single day by the ruling. Today, efforts to green the world, though nascent, are building a momentum of their own. At national and local levels. Across public and private spheres. And that larger world continues to look to us for new ideas on next steps. Accordingly, we do well not to obsess or complain overmuch about particulars of West Virginia vs. the Environmental Protection Agency.)

In closing, some words to live by (hint: they’re not new…)

In support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

We have nothing more to offer; nothing less is called for.

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