Source: www.nytimes.com : 2022-06-19 09:00:17 : Coral Davenport
WASHINGTON — Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants — pollution that is dangerously heating the planet.
But it’s only a start.
The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.
Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases.
“The West Virginia vs. E.P.A. case is unusual, but it’s emblematic of the bigger picture. A.G.s are willing to use these unusual strategies more,” said Paul Nolette, a professor of political science at Marquette University who has studied state attorneys general. “And the strategies are becoming more and more sophisticated.”
The plaintiffs want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group bringing the lawsuits.
But Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked.
West Virginia v. E.P.A., No. 20–1530 on the court docket, is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the same donors behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett.
“It’s a pincer move,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they handpicked.”
The pattern is repeated in other climate cases filed by the Republican attorneys general and now advancing through the lower courts: The plaintiffs are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.
At least two of the cases feature an unusual approach that demonstrates the aggressive nature of the legal campaign. In those suits, the plaintiffs are challenging regulations or policies that don’t yet exist. They want to pre-empt efforts by President Biden to deliver on his promise to pivot the country away from fossil fuels, while at the same time aiming to prevent a future president from trying anything similar.
The Stakes for Climate
Victory for the plaintiffs in these cases would mean the federal government could not dramatically restrict tailpipe emissions because of vehicles’ impact on climate, even though transportation is the country’s largest source of greenhouse gases.
The government also would not be able to force electric utilities to replace fossil fuel-fired power plants, the second-largest source of planet warming pollution, with wind and solar power.
And the executive branch could not consider the economic costs of climate change when evaluating whether to approve a new oil pipeline or similar project or environmental rule.
Those limitations on climate action in the United States, which has pumped more planet-warming gases into the atmosphere than any other nation, would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age. That is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases. The Earth has already warmed an average of 1.1 degrees Celsius.
“If the Supreme Court uses this as an opportunity to really squash E.P.A.’s ability to regulate on climate change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.
The ultimate goal of the Republican activists, people involved in the effort say, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.
Known as the “Chevron deference,” after a 1984 Supreme Court ruling, that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. “Judges are not experts in the field and are not part of either political branch of the government,” Associate Justice John Paul Stevens wrote in his opinion for a unanimous court.
But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. In one of his most famous opinions as an appeals court judge, Associate Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
The constitutional dispute is not necessarily political, because the Chevron deference applies to agency actions in both Republican and Democratic administrations. But conservative hostility to the doctrine may be partly rooted in distrust of entrenched bureaucracies and certain kinds of expertise.
The month after Mr. Trump took office, his chief strategist at the time, Stephen K. Bannon, summed up one of their top objectives as the “deconstruction of the administrative state.”
The Chevron deference has long been a target of conservatives, according to Michael McKenna, a Republican energy lobbyist who worked in the Trump White House. “The originalist crew has been steadily moving toward significantly rewriting Chevron for years,” he wrote in an email. “They are about to be rewarded with a substantial and material victory.”
The roots of that victory were planted in 2015, when Mitch McConnell, Republican of Kentucky, became the Senate majority leader and led his party in a sustained campaign to deny President Barack Obama the opportunity to appoint federal judges.
He refused to confirm nominees, waiting for a Republican administration to fill the courts with judges who shared his belief in minimal government regulation. He was also motivated by the dying coal industry in Kentucky, which could be wiped out by new E.P.A. rules aimed at slowing pollution from fossil fuels.
“Fighting the E.P.A. is ‘Mom and apple pie’ in Kentucky,” said Neil Chatterjee, Mr. McConnell’s former energy policy aide.
Mr. McConnell’s effort ensured that Mr. Trump inherited not just an open Supreme Court seat but 107 additional judicial vacancies.
Then in stepped Leonard A. Leo.
At the time, Mr. Leo was executive vice president of the Federalist Society, the conservative legal group that helped secure the appointments of Chief Justice Roberts and Associate Justice Alito to the Supreme Court and that has served as the ideological and tactical engine behind efforts to overturn Roe v. Wade.
Some of the many donors to the Federalist Society include Koch Industries, which has fought climate action; the Sarah Scaife Foundation, created by the heirs to the Mellon oil, aluminum and banking fortune; and Chevron, the oil giant and plaintiff in the case that created the Chevron deference.
Mr. Leo worked with Donald F. McGahn II, Mr. Trump’s White House counsel and another longtime Federalist Society member, to vet and recommend judicial candidates to the president.
Mr. McGahn was forthright about his criteria. Speaking at the Conservative Political Action Conference in 2018, Mr. McGahn was asked about the White House focus on undoing Chevron. “Well, it’s not a coincidence,” he said. “It’s part of a larger, larger plan, I suppose.”
“There is a coherent plan here where, actually, the judicial selection and the deregulatory efforts are really the flip side of the same coin,” Mr. McGahn added.
Mr. Leo also helped steer the Judicial Crisis Network, a nonprofit advocacy group that ran campaigns to help Associate Justices Gorsuch, Kavanaugh and Coney Barrett reach the Supreme Court, and to install dozens of other like-minded judges on lower courts.
In total, Mr. Trump appointed three Supreme Court justices, 54 appeals court judges, and 174 district court judges. By comparison, Mr. Biden has, to date, appointed 68 federal judges.
In 2020, Mr. Leo stepped down as head of the Federalist Society to run CRC Advisors, a right-wing political strategy firm. In that role, he has operated at the center of a constellation of advocacy groups and undisclosed donors that share a similar goal: Use the courts to advance conservative and libertarian causes.
One of CRC Advisors’ biggest clients is the Republican Attorneys General Association. Another is the Concord Fund, the advocacy group that is the latest incarnation of the Judicial Crisis Network. The fund is also the largest financial backer, by far, of the Republican Attorneys General Association.
Since 2014, the Judicial Crisis Network, now the Concord Fund, has poured more than $17 million into the campaigns of the Republican attorneys general. In the current electoral cycle, the Concord Fund has contributed $3.5 million, several times more than the next biggest donor, the U.S. Chamber of Commerce with $800,000.
The identities of the fund’s donors are hidden from the public; the fund is not legally required to disclose them.
Relationships between untraceable money, politicians and the judiciary are not unusual. Like its Republican counterpart, the Democratic Attorneys General Association is a political action committee that raises money to help members win elections. The attorneys general in both parties pursue cases that are aligned with the interests of their donors and constituencies. During the Trump administration, Democratic attorneys general repeatedly, and often successfully, fought dozens of Mr. Trump’s policies, particularly his weakening of environmental rules.
But legal experts say that the Republican attorneys general and their allies have taken such strategies to a new level, in their funding and their tactics.
“They’ve created out of whole cloth a new approach to litigating environmental regulations, and they’ve found sympathetic judges,” said Richard Revesz, a professor of environmental law at New York University.
Mr. Leo and Mr. McGahn and did not respond to requests for interviews. Mr. McConnell declined an interview request.
Neomi Rao, 49, is typical of the judges given lifetime appointments by Mr. Trump with support from Mr. Leo and his network. Following discussions with Mr. McGahn, Ms. Rao was nominated in 2018 to replace Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit after he was elevated to the Supreme Court.
The D.C. Circuit Court is considered the second-most powerful court in the country because it hears challenges to federal environmental, health, and safety regulations.
Ms. Rao had never served as a judge and had never tried a case. But she had impeccable conservative credentials and a dislike of government regulation.
A member of the Federalist Society since 1996, Ms. Rao had clerked for Associate Justice Clarence Thomas and worked in the George W. Bush administration. She taught at George Mason University’s Antonin Scalia Law School and founded the Center for the Study of the Administrative State, which gathers critics of federal regulation. She told Senator Dianne Feinstein, Democrat of California, that she had consulted with Mr. Leo before founding the center and later met with representatives of the Koch Foundation.
In 2017, she was tapped by Mr. Trump to run the White House Office of Information and Regulatory Affairs, an obscure but powerful office through which proposed federal regulations must pass. From that perch, she oversaw an aggressive regulatory rollback, including the weakening or elimination of more than 100 environmental rules.
Ms. Rao’s office sometimes pushed the Trump team to go even further. When Mr. Trump’s first E.P.A. chief proposed to weaken regulation of methane, a potent greenhouse gas that leaks from oil and gas wells, Ms. Rao’s office suggested loosening the rule even further, allowing more pollution into the atmosphere.
At least two climate cases are pending before the United States Court of Appeals for the D.C. Circuit, which has eight judges appointed by Democratic presidents, nine judges chosen by Republicans, including three Trump appointees, and one vacancy.
Another Trump appointee on that bench is Justin Walker, a former protégé of Mr. McConnell’s and a fellow Kentuckian who wrote a 2021 dissenting opinion in the West Virginia v. E.P.A. case in which he argued that the agency lacked the authority to regulate pollution that causes climate change.
The Fifth Circuit Court of Appeals has seven judges appointed by Democratic presidents and 19 chosen by Republicans, including six Trump appointees. It’s where the Republican attorneys general have filed a challenge to the government’s ability to consider the economic cost of climate change when making environmental decisions.
On that bench is Andrew Oldham, a Trump pick who was once deputy attorney general of Texas. In that role, he worked on the West Virginia vs. E.P.A. climate case, and said in a 2016 speech that climate regulation and the E.P.A. itself are “just utterly and fundamentally illegitimate.”
To the same panel, Mr. Trump appointed Don Willett, a former fellow at the Texas Public Policy Foundation, a conservative research organization that has received substantial funding from Charles and David Koch and aims to “explain the forgotten moral case for fossil fuels” by arguing that they shield the poor from higher energy costs.
Judges Rao, Walker, Oldham and Willett did not respond to requests for interviews.
A New Legal Approach
Of the 27 Republican attorneys general, a core group from fossil fuel states is leading the coordinated legal challenges: Patrick Morrisey of West Virginia, Daniel Cameron of Kentucky, Todd Rokita of Indiana, Ken Paxton of Texas and Mr. Landry from Louisiana.
They meet regularly among themselves and with the oil, gas and coal industries, Mr. Landry said in an interview. “It would be great if we could see an overturning of Chevron,” he said.
The West Virginia case is largely concerned with a line of attack related to Chevron, also rooted in arguments about the separation of powers, which holds that Congress should use plain and direct language if it is to authorize sweeping actions by administrative agencies that could transform the economy.
“What we’re looking to do is to make sure that the right people under our constitutional system make the correct decisions,” Mr. Morrisey, who argued the West Virginia v. E.P.A. case before the Supreme Court, said during a public appearance in Washington in February. “These agencies, these federal agencies, don’t have the ability to act solely on their own without getting a clear statement from Congress. Delegation matters.”
Lined up behind the West Virginia power plant suit is another case in the D.C. Circuit Court brought by 15 attorneys general challenging a 2021 federal rule designed to cut auto pollution by compelling automakers to sell more electric vehicles.
Mr. Paxton of Texas calls the auto pollution rule a “war against fossil fuels” that will harm “the livelihoods of hard-working Texans.”
Should that challenge succeed, more than a dozen Democratic-governed states are expected to impose tougher state-level auto pollution standards. But the Republican attorneys general have already filed a suit in the D.C. Circuit court seeking to block states’ authority to do that.
Another case pending in two different circuit courts challenges the way the federal government calculates the real-life cost of climate change. If the attorneys general succeed in blocking the use of that metric, they could strip the federal government of its legal defense for almost any future climate policy.
That case has been filed by 10 attorneys general in the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana and Mississippi. The same case has been filed by 13 attorneys general in the Eighth Circuit Court of Appeals, which covers Arkansas, Missouri, Iowa, North and South Dakota and Minnesota.
“The A.G.s have a big advantage here, where they can forum-shop and choose the most favorable venues for their litigation,” Mr. Nolette said. “And they can break up into a multistate coalition, to do more arguments in front of more judges. That increases their odds for success.”
While no single case is aimed at overturning Chevron, a string of victories would essentially hollow it out.
Sally Katzen, co-director of the Legislative and Regulatory Process Clinic at New York University School of Law, said that a Supreme Court victory this month for the Republican attorneys general and their allies would just be a taste of what’s to come.
“The Federalist Society has put a lot of time and energy into this, and a lot of intellectual power,” said Ms. Katzen, former head of the White House office of regulatory affairs in the Clinton administration. “All that effort has paid off. But I don’t think this is the culmination of their agenda. I think it’s just the beginning.”
Kitty Bennett and Adam Liptak contributed reporting.
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