January 24, 2022

Whitehouse, Sanders, Blumenthal, Warren Call Out ‘Reek of Politics’ in Right-Wing SCOTUS Challenge to Vital EPA Climate Authority

Berkeley Law Dean Chemerinsky joins senators in brief urging the Court to ‘refuse to participate in this industry-driven project.’ Court should never have taken a challenge to non-existent EPA climate regulations, senators write.


Washington, DC – Today, Senators Sheldon Whitehouse (D-RI), Bernie Sanders (I-VT), Richard Blumenthal (D-CT), and Elizabeth Warren (D-MA) submitted an amicus curiae brief in West Virginia v. EPA, the Supreme Court case challenging the EPA’s authority to regulate greenhouse gas emissions from power plants under the Clean Air Act. Counsel of record for the senators is University of California, Berkeley School of Law Dean Erwin Chemerinsky.

The senators point out that the petitioners in the case are challenging a regulation that does not exist, so there is no “case or controversy” on which to rule. They highlight how this trumped-up challenge is part of a massive, often anonymously-funded influence campaign by fossil fuel industry and other right-wing special interests. They describe “reverse-engineered” doctrines designed to damage for the benefit of industry the basic safety-regulation function of American government, as part of a broad effort against what backers of the litigation scornfully call the “administrative state”—the body of rules and regulations protecting the public’s health and safety in all aspects of American life. The brief points out the role these same interests have had in securing the appointment of judges to federal courts as part of the deregulatory industry plan.

The senators believe that if the Court rules in favor of the special interests driving this unconstitutional challenge, the perception of the Court as a political tool of those right-wing interests will grow, further spreading what Justice Sonia Sotomayor has called a “stench” of partisanship.

“The industry-funded and industry-promoted arguments made here have been repeatedly rejected by the Court, and would empower and enrich polluting corporations at the expense of public health, welfare, and the environment,” the senators write. “The Court should refuse to participate in this industry-driven project. Reversals of precedent that reek of politics, and are advanced by thinly-disguised but highly-motivated front groups, create a ‘stench’ that is likely to undermine the public’s remaining faith in the Court.”

The senators point to a wide array of polluting interests involved in the case, both as petitioners and amici curiae—friends of the court. Fossil fuel companies and their political allies in red states brought the cases consolidated in West Virginia v. EPA. Polluting industries also fund a flotilla of organizations that filed amicus briefs in support of petitioners’ arguments.

One example cited in the senators’ brief is the amicus filer Competitive Enterprise Institute, which has received funding from Exxon Mobil, Murray Energy, the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, and groups tied to the fossil fuel billionaire Koch family. The Institute is joined by multiple other groups lobbying the Court on behalf of their fossil fuel backers. As Whitehouse observed in a recent article published by the Yale Law Journal, the frequency and effectiveness of special-interest amicus lobbying has skyrocketed in recent years, and much of it is done through front groups obscuring who the real interest is behind the brief.

“[T]his industry machine turns to the judiciary to push its policy agenda, asking the Court yet again to do what Congress has consistently refused to do: gut EPA’s regulatory authority under one of our preeminent environmental protection laws,” the senators write in their brief. “The anti-regulatory arguments advanced here would shield deep-pocketed and politically powerful coal, oil and gas interests from regulation under the statutory EPA authority challenged by the petitioners, and give polluters new opportunities to tangle and delay regulation of their emissions. It is no surprise that most, if not all, of the amici supporting the petitioners in these cases receive substantial funding from this industry.”

The senators call attention to the sweeping potential effects of the legal theories presented by petitioners in the case. Both in this challenge and previous ones brought before the Court, the fossil fuel industry and other right-wing special interests have pressed the justices to adopt what have long been considered fringe legal theories like the “major questions” and “non-delegation” doctrines, designed to strip regulatory agencies of the ability to follow Congress’s direction on complicated questions, such as regulating gas, air, and water pollution under the Clean Air and Clean Water Acts. The judiciary – the unelected branch of government – would then become the unaccountable arbiter of whether a congressional delegation of authority was appropriate.

“[A]nti-delegation legal theories do not hand power back to ‘the people’s representatives,’” the senators write. “A democratically-elected Congress created these agencies and maintains oversight of (and even has expedited procedures for rebuking) agency actions. . . . The ‘people’s representatives’ speak through these laws, and act through these powers. These agency duties are then carried out by officials appointed by the president, ‘the most democratic and politically accountable official in Government.’ . . . The industry’s anti-delegation theories would de-democratize this process by transferring power to an unelected judiciary, to strike down laws whenever a delegation of power makes them uncomfortable. This removes political decisions further from democratic accountability. The industry theorists have this exactly backward.”

The senators continue, “It is precisely because delegation of authority to administrative agencies is so critical that these groups seek to hobble it. They know that if they can enlist the Court to push these responsibilities over onto Congress, they will be better able to defeat effective regulation of their industries.”

West Virginia v. EPA gives fossil fuel interests and allies another chance to hinder EPA’s authority to regulate the carbon dioxide emissions driving climate change. In 2016, after the Obama administration promulgated the Clean Power Plan, fossil fuel interests obtained an unprecedented ruling — by five Republican appointees on the Court in a partisan 5-4 decision — that prevented the Clean Power Plan from taking effect.

Afterward, the Trump administration rescinded the Clean Power Plan and issued an industry-driven replacement rule with virtually no effect on carbon emissions; in 2021, the D.C. Circuit Court of Appeals vacated the Trump/industry rule. Now, despite there being no rule in effect, the Court’s Republicans have taken up a case that could allow them to block the EPA’s authority to regulate greenhouse gases altogether, or hobble safety regulation generally.

Erwin Chemerinsky is counsel of record on the brief. He is the Dean and the Jesse H. Choper Distinguished Professor at Berkeley Law, and the author of fourteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. He also is the author of more than 200 law review articles. In 2016, he was named a fellow of the American Academy of Arts and Sciences.

Full text of the brief is available here.

Rich Davidson (202) 228-6291 (press office)

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