July 13, 2022

The Scheme 16 – The Hothouse and West Virginia v EPA pt. 2

Mdm. President, I rise today now for the 16th time to call out the dark-money Scheme to capture and control our Supreme Court.  The last time I rose to shine a light on this Scheme, I sounded a warning about a case then pending at the Supreme Court called West Virginia v. EPA.  I discussed how The Court That Dark Money Built was primed to smash through precedent and weaponize fringe legal theories to deliver for the Scheme’s big donors.

I am sorry, but not surprised, to report that the Supreme Court’s Federalist Society Six did exactly what the polluters asked.  Not only did the Court deliver for polluters, it delivered big.

Before we dive into that, let’s recap what we knew going into this case.  First, the case never should’ve made it this far in the first place.  A handful of Republican states with fossil fuel funded attorneys general, and an armada of right-wing front groups propped up by dark money from the fossil fuel industry, asked the Supreme Court to strike down an EPA rule regulating greenhouse gas emissions from existing coal-fired power plants.  The problem was:  that rule no longer existed.  So, there wasn’t actually an operating EPA rule to challenge, meaning there was no constitutional “case or controversy,” and no reason for a legitimate Court to entertain the industry’s invitation.

But this is The Court That Dark Money Built, and it wasn’t going to let this constitutional guardrail stand in its way to pleasing the big donors who packed the Court.

Supreme Court precedent had repeatedly rejected the polluters’ arguments outright.  The polluters argued that Congress, not the EPA and the so-called “administrative state,” needed to do the regulating here.  But it’s a matter of common sense that Congress delegates authorities to the EPA.  And It’s also well known that polluters want to knock questions away from expert regulators and to Congress, where their dark money political power — also a creature of The Court That Dark Money Built — can be brought to bear to buy delay and obstruction. The power of Congress to legislate broadly and let agency experts fill in the gaps has been upheld for decades, against persistent attacks from regulated industries.  Well, no more.

No matters of law or fact changed since the last time similar questions came before the Court.  The thing that changed is who is on the Court:  a majority selected by polluters using hundreds of millions in dark money.

Which brings us to the decision itself.  There’s good news, and there’s very, very bad news.

The good news is that the Court’s ruling is actually very narrow as to EPA’s authority to regulate greenhouse gases in the power sector. It’s limited to deliberate generation-shifting.  So, there is lots left to work with and EPA needs to pull up its socks and get to work on regulating carbon emissions and other forms of air pollution.  So far, in eighteen months of the Biden administration, EPA has managed to produce one carbon emissions regulation, and not a very strong one at that.  EPA needs to move now as fast as possible.  There is not a second to waste.

The bad news, however, is grim.   The Federalist Society justices loaded up their opinions with polluter talking points and hothouse-grown polluter legal doctrines, paving the way for polluters to block or delay regulations for years to come.

Start with the polluter talking points, rife throughout Justice Gorsuch’s concurrence, which spends twenty pages decrying the dangers of government regulation. He calls regulators a “ruling class of largely unaccountable ‘ministers.’”   That is not even remotely true.  If there’s an unaccountable ruling class in America right now, it’s The Court That Dark Money Built, and the dark money forces behind it.  

Compare that to EPA:   EPA leadership is selected by the president, approved by the Senate, and can be fired at will should they deviate from the elected president’s priorities.  They are all directly accountable.  And the White House’s Office of Management and Budget also reviews every EPA regulation to make sure it’s consistent with the president’s agenda.

Congress retains complete control of the EPA’s funding, and has entire committees dedicated to oversight.  It’s Congress that provided EPA with its instructions, through laws like the Clean Air and Clean Water Acts.  Congress also created the Administrative Procedure Act, to assure that agencies like EPA carry out their duties fairly, according to the facts, according to proper procedure, and under rigorous judicial supervision; and passed the Congressional Review Act, so Congress is able swiftly undo any rules it doesn’t like.

In actuality, in the real world, there is direct accountability and oversight over EPA by all three branches – all three branches — over this supposedly unaccountable “ruling class.”  By comparison, Justice Gorsuch and his colleagues wield their unaccountable power without even the bare minimum of an enforceable ethics code. 

This argument by Justice Gorsuch may not be founded in fact, but it has a foundation.  The idea that the biggest threat to freedom is an “administrative state” full of unaccountable bureaucrats is a longstanding talking point of the fossil fuel industry, constantly trotted out by Republican politicians and fossil fuel front groups.  Here’s just a taste of what I mean:

The Heritage Foundation, a key fossil fuel front group:  “[T]he administrative state’s functionaries are powerful . . . .  They are unelected, unknown, and, for all practical purposes often unaccountable.”  Sound familiar?

Here’s the Minority Leader, responding to a speech by a Republican senator decrying “unelected bureaucrats”:  the Minority Leader called this “the single biggest problem confronting our country . . . the single biggest thing holding this country back from reaching its potential.”  And in the wake of this very decision, he went to their go-to talking point, “unelected, unaccountable bureaucrats.”  It just is not true. The foundation of Gorsuch’s screed is not fact, it’s political fossil fuel talking points.  And we should not be surprised that those talking points made their way into an opinion by a Supreme Court justice — that is exactly what The Court That Dark Money Built was built for.

Aside from the talking points are legal doctrines hatched in polluter-funded hothouse doctrine factories, a web of phony think tanks, Scheme-friendly “scholars,” and conservative conferences designed to cultivate and legitimize fringe legal theories — reverse engineered to produce the results polluter wants. One is the so-called “major questions” doctrine, which, guess what, makes its maiden appearance in West Virginia v. EPA.

Let’s look at how the “major questions” doctrine traveled from the doctrine factory into a Supreme Court decision. 

The Trump administration, fully in tow to the fossil fuel industry, took this rare specimen of legal theory and pumped it up into a powerful weapon against the functioning of the federal government.  From Day One, Trump’s top advisor Steve Bannon vowed that the Trump administration would carry out the “deconstruction of the administrative state.”  Trump’s White House Counsel Don McGahn—the same Don McGahn who oversaw the confirmation of the Scheme’s handpicked justices—admitted this, I’m quoting him here  “the judicial selection and the deregulation effort are really the flip side of the same coin.”  Think about that, in his words, the Trump White House had a “larger plan” to wipe out government regulations using judges.

For four years, Trump lawyers argued in court for this “major questions” doctrine, previously unmentioned in any Supreme Court decision.  The Trump team urged courts to deploy the doctrine to strike down agency laws—including in this case, West Virginia v. EPA.  Now, while the Court had never mentioned the doctrine, it had been mentioned. Brett Kavanaugh on the D.C. Circuit did, while he was  auditioning himself for a seat on the Supreme Court, to catch the eye of Scheme donors, and to telegraph to them how eager he would be to do their bidding.  Kavanaugh wrote a dissent in a case about “net neutrality,” a case with many of the Scheme’s dark-money front groups — Cato, Competitive Enterprise Institute, Pacific Legal Foundation — present as amici.  They were the right audience for Kavanaugh’s “major questions” audition tape, and he aimed to please.

And the payday for Scheme donors came in West Virginia v. EPA. At least fourteen polluter front-group amici showed up to push in chorus for their “major questions” doctrine — the usual suspects, funded by fossil fuel dark money, like Cato, the Koch flagship Americans for Prosperity, and Competitive Enterprise Institute.

Justice Gorsuch’s concurrence is rife with citations legitimizing doctrine factory “scholarship.”  He cites articles written by the founder and president of the Free State Foundation, a member of the dark-money State Policy Network; by a member of the dark-money Federalist Society’s Administrative Law Group executive committee; and by the former president of the Koch-funded American Enterprise Institute.

The Scheme is all about boosting corporate power and rolling back government regulations.  It’s not just about building a Dark Money Court; it’s about front groups by the dozen, which operate in coordinated flotillas; it’s about faux scholarship, reverse-engineered in a parallel universe of faux academia, to give polluters power over government; and it’s about more than half a billion dollars in dark money spent to set up and run the whole sham enterprise.

The attack on regulation began with an effort to revive the so-called “nondelegation doctrine,” discarded by the Supreme Court almost one hundred years ago.  Like the “major questions” doctrine, the “nondelegation doctrine” allowed courts to strike down agency rules when Congress wasn’t explicit enough in delegating power.   Polluters loved it.  Scheme front groups like the Cato Institute—propped up by dark-money from the fossil fuel billionaire Koch family and companies like Exxon Mobil—sponsored “research” that argued for reviving the “nondelegation doctrine.” They organized conferences and seminars, lobbied legislators, and funded law groups designed to spread the idea far and wide. 

But “major questions” had one advantage:  years ago, on the D.C. Court of Appeals, Justice Breyer had used those two words once, in passing, in a lengthy law review article.  They could seize that camouflage.   And guess what?   “Major questions” is just “nondelegation” in disguise.  If you don’t believe me, let’s go back to Justice Gorsuch, in a concurrence from another case earlier this year, I quote:

“[T]he major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.  Indeed, for decades courts have cited the nondelegation doctrine as a reason to apply the major questions doctrine.  . . . Whichever the doctrine, the point is the same.”

Indeed.   The point is that a Court captured by polluter interests will find any way it can to import polluter doctrine, cooked up in polluter-funded doctrine factories, into the law of the land.  And that’s just what they just did in West Virginia v. EPA.  For the polluters, mission accomplished. 

The Court That Dark Money Built had already wreaked havoc in our law.  Even before they got to six, they had run up eighty 5-4 partisan decisions benefiting big Republican donor interests. Eighty 5-4 partisan decisions benefiting big Republican donor interests. Now with six, they have set about destroying precedent left and right, taking away the constitutional right of women to control their own reproductive decisions, blocking efforts to reduce gun violence, and now adopting new theories to empower polluters against public health regulation.  

The FedSoc Six’s hatred for regulation isn’t shared much outside the polluter-funded parallel universe.  Most Americans appreciate regulations – they appreciate regulations that help make sure food and water are safe, air is clean, medicines actually work, markets are honest, investors have real information, and car seats protect you in a car wreck.  The American people are right to sense that something is deeply amiss at the United States Supreme Court. 

A captured Court presents an unprecedented challenge to the other branches, but we aren’t helpless. 

First is we need to telling the truth about what is going on.  The pattern is unmistakable.  People need to understand.

We can pass laws like my DISCLOSE Act to shine light on the dark-money donors who captured our Court in a long scheme. 

We can require real ethics requirements for Supreme Court justices, just like all other federal judges already have.  Remember the ongoing ethics investigations against Judge Kavanaugh they were dropped, not because they were resolved, not because they ended, not because he was found not culpable, hey were dropped against Judge Kavanaugh because he escaped to the Supreme Court, where ethics investigations don’t exist. That’s a terrible single.

We can require justices to report gifts and hospitality, as all other judges do and all senior government officials do in the executive and legislative branches. 

There are many ways to push back against the new “ruling class” of “unaccountable ministers” on the captured Court, and assure that fairness and justice, and not the Court’s deep-pocketed special interest friends, are what drive Court decisions.  There’s a lot to be done and we need to begin.

To be continued.