U.S. Supreme Court screw-up shackles the EPA on climate change

Florida’s vulnerable on climate, but don’t expect DeSantis to object

July 7, 2022 7:00 am

Emissions from a coal-fired power plant are silhouetted at sunrise. Credit: Getty Images

The main thing I remember about that day at the U.S. Supreme Court was how cold it felt. A couple of inches of snow had fallen that January morning in 1984, but the real chill was in the court’s marble halls.

This was back when newspapers had money to spend. The Pensacola News Journal paid for my plane ticket to Washington to cover oral arguments in a voting rights case. It was a big deal because it ultimately led to the election of Escambia County’s first Black commissioner, who also ran the state’s first funeral home with a drive-through window.

The courtroom where the arguments took place was hardly warmer than the weather outside. The layout seemed designed to elevate the black-robed justices above us mere mortals and make their pronouncements seem as profound as if handed down by some ancient emperor.

Because I am forever a smart-aleck, though, I wondered which ones were wearing ONLY a robe —  nothing else.

The news last week about the Supreme Court’s string of right-wing decisions on abortion, guns, and climate change carried an even deeper chill than my memory of that long-ago winter morning.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Ketanji Brown Jackson has since replaced Breyer.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

First, the justices — three of whom were appointed by the ketchup-loving president who incited a riot to stay in power — voted 6-3 to give gun-owners more rights than pregnant women.

They did so by citing what the Founding Fathers thought and did in the 1700s, with little concern for how our world has changed since then. Apparently, those six are wearing 18th century knee breeches and wool mantuas beneath their robes, and no doubt will soon order the rest of us to follow suit.

When I heard the high court had also smacked down the U.S. Environmental Protection Agency for trying to combat climate change, I thought perhaps they had followed the same loopy logic: George Washington didn’t have to deal with climate change caused by coal-burning power plants, so therefore neither should the EPA.

But no, that wasn’t it. Instead, the majority opinion turned on a matter of what the kids on “South Park” would call “authori-tah.”

In other words, those six silly Supremes claim the EPA lacks the power to make power plants do the right thing for the planet.

This is particularly important decision for us folks in Florida, the state generally regarded as the one most at risk from climate change.

We’ve got sea levels creeping higher on three sides of us, the high heat gets worse, and hurricanes feeding on the warmer water gain greater strength before sowing destruction inland. There are other affects, too, including more toxic algae blooms (ew!), saltwater intrusion in our aquifer (yuck), and more mosquito-borne diseases (hello, Zika!).

I think I speak for everyone worried about Florida’s future as habitat for creatures without gills when I stand up to holler at these six dunderheads, “I object!”

Even Tricky Dick was for it

Richard Nixon. Credit: Richard Nixon Presidential Library & Museum

The fight here is over the Clean Air Act, which was passed back when even arch-Republican Richard Nixon claimed to be concerned about the environment. You know if Tricky Dick was for it, it was because he saw how popular it had become.

The first Earth Day drew millions of protesters into the streets across America in April 1970. They picketed against the nation’s rampant and destructive pollution of the air and water. By December, a bipartisan vote in Congress had approved the Clean Air Act of 1970 and Nixon quickly signed it into law.

Also born in December 1970: the EPA, created by Nixon (he really was a master at reading the zeitgeist, wasn’t he?). Under the Clean Air Act, Congress gave the brand-new EPA the power to regulate the sources of air pollution.

In the 52 years since, the EPA has used that power to clamp down on soot, smog, mercury, and the toxic chemicals that cause acid rain.

Air pollution is a threat to human health, so the EPA’s action has benefited all of us. No matter what our political beliefs, we all breathe air, right?

But when the EPA tried to take on the ultimate threat to humans — a scorched earth — that’s when the polluters really started pushing back.

I should warn you: This is where the whole thing gets craaaaaaaaaaaaaazy, and I don’t mean in a classy Patsy Cline kind of way.

Ruling against the Skunk Ape

Remember when a law professor named Barack Obama was president? Back before we had as chief executive a Florida golf club owner who’s now starring in my favorite true-crime TV show? (I just wish I could binge it.)

When he took office in 2009, Obama promised “a new chapter in America’s leadership on climate change.” But he had only a slim Democratic majority in Congress, and that for only the first two years of his eight in office.

Barack Obama addresses the COP26 international conference on climate change. Credit: Christopher Furlong/Getty Images

During those two years, he was so focused on saving the auto industry, passing Obamacare, and reforming Wall Street that he missed his shot to pass any climate legislation prior to the 2010 mid-terms.

“Pro-fossil fuel industry groups spent record sums on Republican candidates in that election,” Inside Climate News reported in a 2016 round-up. “The House flipped and the Democrats’ lead in the Senate narrowed as a new crop of climate deniers was swept into Congress.”

In the remainder of Obama’s time, with no help available from Congress, he turned to executive orders and agency actions. His signature program was the Clean Power Plan, in which the EPA aimed to cut carbon pollution from power plants by 30 percent from 2005 levels by pushing them to switch to cleaner fuels.

Michael Burger. Credit: Columbia Law School

Even though coal-burning power plants are a major source of carbon pollution, the Clean Power Plan would not have ended the use of coal, said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School.

“Coal would have remained in the energy fuel mix for years,” Burger told me.

But the idea of being phased out drove those fossil fuel fools to challenge Obama’s plan in court, stalling it before it could take effect.

Then, when Donald “Climate Change Is a Chinese Hoax” Trump took office, that plan got dumped. Trump’s EPA director — a former coal industry lobbyist — concluded that the agency lacked authority under the Clean Air Act to shift power plants away from coal to cleaner sources without some specific authorization to do so from Congress.

Instead, Trump’s EPA came up with a new plan that would not hurt the industry Trump himself often described (inaccurately) as “clean, beautiful coal.” I prefer to think of it as the “black-lung-for-everyone” plan.

When Trump lost all of his multiple bids to hang onto the presidency, his pro-coal plan went out the window. The Biden administration was working toward a new power plant plan but hadn’t plugged anything in yet when the Supreme Court jumped on the EPA.

The case the U.S. Supreme Court ruled on was that challenge to the Obama plan — the plan that never went into effect. The court’s majority rejected a government program that didn’t even exist.

It was as if the court had ruled against the Skunk Ape, even though that smelly creature can be seen only in blurry photos on souvenir T’s.

The idiotic thing

The first time the Supreme Court heard a climate change case was 2007. Massachusetts sued the EPA because the federal agency had been reluctant to regulate greenhouse gases as a pollutant under the Clean Air Act.

Massachusetts said the EPA was wrong, and the court ruled 5-4 for Massachusetts. The act’s definition of air pollutant was written with “sweeping” and “capacious” language so that it would not become obsolete as technology changed, said the majority opinion.

One of the dissenters: Chief Justice John Roberts, who contended Massachusetts had no standing, which to me seems like a weaselly way to avoid the main issue.

Guess who wrote the majority opinion for last week’s climate change opinion. Roberts again — who, I must point out, was chosen for the court by George W. Bush, who wouldn’t have been elected president if not for Florida’s 2000 butterfly ballot boner.

The court challenge came from 19 states — so not even half of the 50 — as well as utilities and coal companies. Thank heavens Florida Attorney General Ashley Moody, who frequently dives into these kooky GOP legal kerfuffles as if all of the state’s taxpayers supported her, chose to skip this one.

This time, Roberts did not say the states lacked standing. Instead, his opinion aped the conclusion of Trump’s pro-coal EPA:

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. … A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Florida has no plan to switch from dirty to clean energy. Wikimedia Commons photo

Never mind that 200 Democratic members of Congress filed a friend of the court brief insisting that they were fine with what the EPA was doing. Never mind that Congress repeatedly failed to act, leaving the EPA to handle it. And never mind that “capacious” and “sweeping” language mentioned in the 2007 decision.

And never mind that the Clean Power Plan was cheaper for the power industry than any other alternative.

“That’s the idiotic thing,” said Burger. “The Clean Power Plan was considered to make the transition [to clean sources] the most affordable way.”

For a brutal rebuttal, I refer you to the clearly angry dissenting opinion by Justice Elena Kagan and joined by Justices Sonia Sotomayor and the retiring Stephen Breyer.

“Today, the court strips the EPA of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” she wrote. “Whatever else this court may know about, it does not have a clue about how to address climate change. … The court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

I can, Justice Kagan: Living in Florida while the Supreme Court botches the response to climate change. That’s scarier than anything at the Busch Gardens Howl-o-Scream.

Empty-headed emperors

This particular court ruling didn’t rate the razzing its abortion and gun decisions attracted. The closest was satirist Andy Borowitz, who in The New Yorker offered the headline, “Nation’s Fetuses Puzzled Why Supreme Court Wants Them Exposed to Air Pollution.”

Michael Regan. Credit: EPA

The sitting EPA administrator, Michael Regan — who is most definitely NOT a former coal lobbyist — talked about launching a “counterpunch” to the ruling. I think what he’s referring to are several ideas explored by Inside Climate News last week that it said are “more restrictive and more expensive for the power sector.”

So, what can we do, here in Florida? Not much — yet.

Our governor, Ron “The Developers’ Dupe” DeSantis, is happy to spend tax dollars armoring waterfront property against rising seas, but he refuses to do any “left wing stuff”  to wean the state off fossil fuels. In fact, he can’t even bring himself to say the words “climate change.”

There are two people who’d like to replace him, and both are able to utter that phrase.

Agriculture Commissioner Nikki Fried announced recently that she’s setting a goal for Florida to switch to 100 percent renewable energy sources by 2050.

The only problem is, she can’t enforce that. The rules are in the hands of the Public Service Commission, all gubernatorial appointees, and under DeSantis the PSC tends to be to the utilities as Miss Piggy is to Frank Oz.

The only Florida governor to ever crack down on coal-burning power plants was a Republican named Charlie Crist. Now Crist, a congressman, is running for governor as a Democrat.

“This Supreme Court has gone wild,” he told me Wednesday. “It’s pretty scary stuff. Basically, shackling the EPA is not good for Florida or for America.”

When I asked him what he’d do about it if elected, Crist promised he’d “sign an executive order on my first day in office to limit carbon emissions.”

King tide floods street in Miami Beach. Credit: Arianna Prothero via Flickr

But what can we, as citizens of Florida, do to let the Supreme Court know we think they’ve screwed up? Here’s my modest proposal.

Every time your street floods on a sunny day, every time a storm surge washes out your property, every time you discover saltwater has toppled your freshwater-dependent palm trees, scoop up a bottle of the stuff.

Put a label on the bottles that says, “This Is the Result of Your West Virginia vs. EPA Opinion.” Then mail it to the chief justice’s office in Washington, D.C.

And maybe send some clothes, too. I think beneath their robes, all of six of these empty-headed emperors are actually naked.

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Craig Pittman
Craig Pittman

Craig Pittman is a native Floridian. In 30 years at the Tampa Bay Times, he won numerous state and national awards for his environmental reporting. He is the author of six books. In 2020 the Florida Heritage Book Festival named him a Florida Literary Legend. Craig is co-host of the "Welcome to Florida" podcast. He lives in St. Petersburg with his wife and children.