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MajorityRoberts, joined by Thomas, Alito, Gorsuch, Kavanaugh, Barrett
ConcurrenceGorsuch, joined by Alito
DissentKagan, joined by Breyer, Sotomayor

===

mma 5 24

right-wing media are attacking a series of new regulations the EPA issued in an effort to cut planet-warming carbon emissions and other types of toxic pollution from coal plants and some natural gas plants.

In response to the new rules, which the agency issued on April 25, right-wing media have misleadingly argued that one key action — forcing coal plants and new natural gas plants to cut carbon pollution by 90% in the next eight years — would inevitably cause blackouts and steep energy price increases, fueled by growing demand.

They also insist that the move is unconstitutional, pointing to the 2022 West Virginia v. Environmental Protection Agency Supreme Court decision, even though the regulations were designed with the decision in mind.

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climate denial roundup

https://www.dailykos.com/stories/2022/7/12/2109866/-Given-an-Inch-by-SCOTUS-Deniers-Take-a-Mile-to-Use-WVa-v-EPA-to-Deconstruct-Administrative-State

Well we took a week off, but we're still not done being mad about the minoritarian justices on the Supreme Court giving polluters a free pass in the West Virginia v. EPA case.

:{Though there was some relief in that it doesn't directly say the EPA can't do anything about climate change, the reality is that by bringing the "major questions doctrine" out of polluter wishlists and into to the Court's majority opinions, it may be even more underhandedly devastating than what a straight reading of the supposedly "narrow" ruling would suggest. But EPA authority on carbon pollution }isn't dead…yet.

Pollution profiteers know they've won. You can see it in their reactions. At the Koch-funded Daily Caller, coal/tobacco lawyer Steve Milloy crowed that"it’s hard to see how any EPA regulation of greenhouse gases is legal since Congress never authorized such regulation."

Normally, Steve Milloy is the type of person that you should believe the exact opposite of what he says, given that his career has been to defend tobacco and fossil fuels. In years prior, if he said a SCOTUS ruling meant no more EPA regulations, smart money would be on the opposite.

So we include that quote not because we think Milloy has abandoned polluter propaganda and is suddenly telling the truth. Instead, we draw your attention to it because while it is polluter propaganda, unfortunately we now have a Supreme Court that turns polluter propaganda into precedent. But when the Supreme Court lies about "major questions" in the same way polluters have funded lawyers to cook up over the years, it's not a lie, it's a doctrine. 

On the Wall Street Journal's opinion page, long home to polluter propaganda, two lawyers representing people who profit off of a product that's destroying the planet's ability to sustain human civilization lay out the game plan going forward: **no more deference to the administrative state**.

"West Virginia and the major questions doctrine are certain to surface again soon," write David Rivkin and Mark DeLaquil, pointing to "the Securities and Exchange Commission’s proposed climate-change disclosure regulations" the FTC's anti-monopoly moves and Title IX regulations for public education. (See this WSJ editorial for another example of using this ruling to attack anything they don't like, in this case "Pete Buttigeig's Climate Toll Road.")

"Going forward," Rivkin and DeLaquil conclude, "the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule."

In other words, the first thing lawyers for polluters and profiteers are going to do when regulated is claim that Congress didn't intend for this, and whether they're right won't matter, because they'll already have purchased sufficient votes on the Hill to prevent legislation.

This Supreme Court has now been captured by the same far-right patriarchal white supremacist polluters that have thoroughly corrupted the Republican party. They're even using the same lawyers! A couple weeks before the Journal published David Rivkin'scelebration gutting the administrative state, it published David Rivkin celebration the overturning of Roe, with a piece headlined "Supreme Court Reclaims Its Legitimacy."

Let's hope one day that actually becomes true.

https://www.eenews.net/articles/meet-the-lawyers-teeing-up-the-supreme-court-climate-showdown/

1/22

as arguments approach in the most significant Supreme Court environment battle of the decade, teams of lawyers are already making their case for how the justices should view EPA’s climate authority.

When the justices take the bench on Feb. 28 to hear arguments in West Virginia v. EPA,they will arrive armed with information from reams of briefs prepared by some of the nation’s leading environmental lawyers.

Those attorneys’ arguments will lay the groundwork in a high-stakes case that has the potential to upend EPA’s ability to regulate greenhouse gases from power plants — one of the nation’s largest sources of carbon dioxide emissions.

the challenge — brought by Republican-led states and coal companies — asks the Supreme Court to overturn a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck down a Trump-era EPA rule gutting the Obama-era Clean Power Plan.

The 2015 Obama rule invoked EPA’s authority under the Clean Air Act to set systemwide requirements for power plant emissions reductions.

After the D.C. Circuit ruling, President Biden’s EPA had a clean slate to craft its own rule. The agency had said it would not return to the Clean Power Plan, whose goals have already been met by the power sector, even though the regulation never took effect.

The justices then took the unusual step of agreeing to hear a dispute over a regulation that does not technically exist.

Their ruling in the case, which is expected by next summer, could not only constrain EPA from issuing a comprehensive new carbon rule but also prevent Congress from handing off broad regulatory authority to federal agencies.

Here are some of the lawyers to know in this year’s high court climate slugfest:

Lindsay See

Leading the briefs for West Virginia is Lindsay See, the state’s solicitor general.

The coal-rich state, joined by 18 others, filed the first plea for the Supreme Court to weigh in on EPA’s climate authority. It was followed by three other petitions, which are now consolidated in one massive case.

See has served as West Virginia’s leading litigator since 2017 and previously worked as an associate atGibson, Dunn & Crutcher LLP, a firm with a prominent Supreme Court practice.

She has appeared once before the nation’s highest bench, in a 2018 case related to a discrimination challenge against an exemption in West Virginia tax law that protected state and local — but not federal — employees from having their pension benefits taxed. West Virginia lost the case.

West Virginia Attorney General Patrick Morrisey (R) and other state lawyers said the D.C. Circuit should not have allowed EPA to regulate power plant emissions under a “rarely used, ancillary provision of the Clean Air Act.” They referred to Section 111(d) of the statute, which served as the basis for the carbon rule.

“Save for a few general factors EPA was to take into account, the lower court told EPA it has ‘no limits’ on the emission-related measures it can impose — on any economic sector or almost any actor,” says the states’ most recent brief, which was signed off on by See.

See is a Harvard Law School graduate and clerked for former D.C. Circuit Judge Thomas Griffith.

Paul Seby

One other state has echoed West Virginia’s arguments in a petition and brief led by a lawyer who has been involved in the EPA carbon rule battle since the Clean Power Plan days.

Paul Seby, a shareholder at the firm Greenberg Traurig LLP and special assistant to North Dakota Attorney General Wayne Stenehjem (R), signed off on a brief that said the D.C. Circuit ruling “undermines the cooperative federalism framework carefully crafted by Congress” by finding that EPA — rather than states — can set power plant performance standards.

North Dakota v. EPA is one of the four petitions in the consolidated Supreme Court case.

Seby has argued against EPA carbon regulations before, back when the Clean Power Plan was before the D.C. Circuit. The court held a marathon argument over the regulation in 2016 but never reached a ruling.

Earlier that year, the Supreme Court had blocked the rule from taking effect, which allowed the Trump administration to dismantle it.

Seby holds a bachelor’s degree from the University of San Diego and a law degree from Lewis & Clark College.

Andrew Grossman

One of the other lead petitioners in the climate case, Westmoreland Mining Holdings LLC, hired Andrew Grossman to make its case to the high court.

Grossman leads BakerHostetler’s appellate practice and is a frequent conservative commentator on wide range of administrative and constitutional issues.

Grossman is an adjunct scholar at the libertarian Cato Institute and a former legal analyst at the Heritage Foundation. He’s also a familiar face on Capitol Hill, having testified several times before the House and Senate Judiciary committees.

In Westmoreland’s petition, Grossman raised what some environmental advocates referred to as a killer question: whether EPA may use Section 111(d) to create performance standards for existing stationary sources under the provision’s “hazardous air pollutants” program.

The justices granted the petition alongside others, but they said they would only consider the second question posed by Westmoreland’s petition: whether EPA’s carbon rule violated the major questions doctrine, which restricts federal agencies from deciding issues of “vast economic and political significance.”

Grossman attended Dartmouth College and theGeorge Mason University’s  SCALIA School of Law.

Yaakow Roth

The fourth petition in the consolidated case comes from North American Coal Corp., represented byJones Daypartner Yaakov Roth.

Like the other challengers, the coal company argues that EPA and the D.C. Circuit have taken far too broad a view of federal climate authority under the Clean Air Act.

Roth comes to the EPA climate case with lots of experience before the Supreme Court. He was the brainchild behind an argument that led the Supreme Court to overturn convictions in the New Jersey “Bridgegate” scandal.

He has also fought to preserve restrictive voting laws in Arizona and to dismantle the Obama-era Affordable Care Act.

Roth has clerked for the late Supreme Court Justice Antonin Scalia and a federal appeals court judge.

He is a graduate of Harvard University and York University.

Elizabeth Prelogar

Before the Supreme Court agreed to hear West Virginia v. EPA, Elizabeth Prelogar had argued on behalf of the federal agency that it was too early for the justices to get involved.

The solicitor general noted in a brief filed in August that Biden’s EPA has not yet written a new carbon rule and has no plans to revive the Obama plan.

EPA instead intends to issue a new rule “after taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years,” she wrote.

Prelogar, who was confirmed in late October, has already made several appearances before the Supreme Court, including in one case in which she argued on behalf of the federal government against abortion laws in Mississippi and Texas.

Since her appointment as acting solicitor general in January, Prelogar has also led Supreme Court briefs in several environmental cases, including one in which the Biden administration backed efforts by the developer of the PennEast natural gas pipeline to acquire state-owned land in New Jersey (Energywire, March 10, 2021). The pipeline company won its case, but the project was eventually canceled.

Prelogar, a Harvard Law School graduate, has previously served as assistant to the solicitor general and has worked in private practice. During a prior stint at the Justice Department, she served on the special counsel’s investigation into Russian meddling in the 2016 election.

She clerked for Attorney General Merrick Garland when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit and for Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan.

Prelogar is the second woman to be confirmed as solicitor general. Kagan was the first.

Sean Donahue

Environmental groups that support broad EPA regulatory authority have turned to an experienced Supreme Court litigator to represent them in the case: Sean Donahue.

Donahue has been a go-to lawyer for environmental groups and public health advocates in some of the most high-profile litigation of the last decade, including Clean Air Act and climate cases.

He’s also represented environmentalists in key cases on the social cost of carbon for fuel economy and vehicle emissions standards.

Donahue and his team, including the Environmental Defense Fund’s Vickie Patton, will have a challenging task ahead of them. Several conservative justices have signaled skepticism of doctrines requiring them to defer to agency expertise, and the current case appears to be a coordinated effort to curtail EPA’s regulatory authority broadly.

In an interview, Donahue said once again it may be an environmental case that set an important precedent for administrative law.

"Statutes like the Clean Air Act," he said, "necessarily depend upon expert agencies to apply Congress’ health and environmental directives to complex factual records, developing technologies, about particular industries and pollutants."

Donahue, who works for Donahue, Goldberg & Littleton, clerked for former Supreme Court Justices Ginsburg and John Paul Stevens. He’s also a veteran of the Justice Department. He attended Columbia University and University of Chicago’s Law School.

Beth Brinkmann

Another attorney with Supreme Court experience is making the case for electric utilities that want to preserve the D.C. Circuit decision striking down the Trump-era carbon rule.

Before the justices granted the case,Covington & BurlingLLP partner Beth Brinkmann led a brief on behalf of Consolidated Edison Inc. and other companies that said Supreme Court review of a nonexistent regulation would run the risk of a “ruling untethered to actual circumstances.”

Moreover, she wrote, the red states and coal companies are seeking relief from the justices even as the power industry has achieved the Clean Power Plan’s 2030 emissions reductions targets more than a decade in advance —even though the rule never officially took effect.

“Those changes, which include reductions in the cost of emission-reduction technologies and increasing consumer preferences for clean power, have only accelerated since adoption of the ACE Rule,” she wrote.

Brinkmann has argued more than two dozen times before the Supreme Court. As former deputy assistant attorney general at the Justice Department’s civil rights division, for example, she defended the Obama administration’s Affordable Care Act.

She has also worked in the appellate practice at the firm Morrison & Foerster and as an assistant federal public defender representing indigent criminal defendants.

Brinkmann is a graduate of the University of California, Berkeley, and Yale Law School. She clerked for the late Supreme Court Justice Harry Blackmun.

Elbert Lin

A utility industry group that opposes EPA’s ability to craft rules like the Clean Power Plan has staffed its legal team with an attorney who, at only 43 years old, has already made a significant impact on environmental law at the Supreme Court.

Elbert Lin was the lawyer who secured the unprecedented stay of President Obama’s climate regulatory regime, the Clean Power Plan, in 2016 while he was West Virginia’s solicitor general.

Lin said in an interview that his interest in environmental and administrative law was born out of necessity when he was West Virginia’s solicitor general. It was during Obama’s second term, and the administration was promulgating many major environmental rules, including the Clean Power Plan.

"Environmental regulations were of significant importance of the state," he said.

Now in private practice at the firm Hunton Andrews Kurth LLP, Lin is back in the EPA carbon rule litigation, representing America’s Power, a trade association of companies that produce electricity from coal.

Lin, who is the son of Taiwanese immigrants, has also argued key Clean Water Act cases at the high court. He argued on behalf of Maui, Hawaii, in a case over whether a federal permit is required for pollution that is pumped underground but eventually reaches the ocean.

The Supreme Court delivered a new test for determining whether a permit was needed, and a federal judge in Hawaii later sided with environmental groups arguing that Maui should have secured a Clean Water Act approval (Greenwire, Oct. 21, 2021). Legal experts say they are watching to see how other courts apply the Supreme Court’s test.

Lin attended Yale for undergrad and law school, and heclerked for a federal appeals court judge and Supreme Court Justice Clarence Thomas.

Reporters Lesley Clark and Niina H. Farah contributed.

https://www.politico.com/news/2023/04/25/neil-gorsuch-colorado-property-sale-00093579

politico bad code box size]

no lnx

Supreme Court Justice Clarence Thomas has [lnx] to overturn the 2020 presidential election results. Now, according to Politico reporter Heidi Przybyla, another relationship involving a High Court justice could merit close scrutiny — and this time, the justice is Donald Trump nominee Neil Gorsuch.

Przybyla, in an  on April 25, reports, "For nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colorado. Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, the then-circuit court judge got one: The chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the High Court. Gorsuch owned the property with two other individuals."< according to Przybyla, Brian Duffy of Greenberg Traurig "put under contract the 3000-square-foot log home on the Colorado River and nestled in the mountains northwest of Denver, according to real estate records. >READ MORE:

"He and his wife closed on the house a month later, paying $1.825 million, according to a deed in the county’s record system," Przybyla reports. "Gorsuch, who held a 20 percent stake, reported making between $250,001 and $500,000 from the sale on his federal disclosure forms. Gorsuch did not disclose the identity of the purchaser. That box was left blank. Przybyla adds, "Since then, Greenberg Traurig has been involved in at least 22 cases before or presented to the Court, according to a Politico review of the Court's docket. They include cases in which Greenberg either filed amicus briefs or represented parties.

In the 12 cases where Gorsuch's opinion is recorded, he sided with Greenberg Traurig clients eight times and against them four times." zxz for nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colo. Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, the then-circuit court judge got one: The chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the high court. Gorsuch owned the property with two other individuals.>

On April 16 of 2017, Greenberg’s Brian Duffy put under contract the 3,000-square foot log home on the Colorado River and nestled in the mountains northwest of Denver, according to real estate records....federal disclosure forms.<...Since then, Greenberg Traurig has been involved in at least 22 cases before or presented to the court, according to a POLITICO review of the court’s docket....one of the more highly publicized rulings in recent years, a multistate suit which reversed former President Barack Obama’s plan to fight climate change through the Clean Air Act.

Gorsuch joined the court’s other five conservative judges in agreeing with the plaintiffs — including Greenberg’s client — that the Environmental Protection Agency had overstepped its authority by regulating carbon emissions from power plants in the decision that makes it more difficult for the executive branch to regulate emissions without express authorization from Congress.

Duffy, who in addition to serving as CEO is chief of Greenberg’s entire 600-lawyer litigation department, said he has never personally argued cases before Gorsuch or met the justice socially.

“I’ve never spoken to him,” Duffy said. “I’ve never met him.”

Once he learned Gorsuch was among the owners, Duffy said, he cleared the sale with his firm’s ethics department.

Gorsuch did not respond to inquiries about the sale, his disclosures or whether he should have reported Duffy’s identity as the purchaser.

Supreme Court rules do not prevent justices from engaging in financial transactions with people with interest in court decisions, but Gorsuch’s dealings with Duffy expose the weakness of the court’s disclosure procedures. For instance, in reporting his Colorado income, Gorsuch listed as his source only the name that he and his two co-owners gave themselves, Walden Group, LLC. The report didn’t indicate that there had been a real estate sale or a purchaser.

Such a sale would raise ethical problems for officials serving in many other branches of government, but the Supreme Court sets its own rules. It has largely left justices to make their own decisions about when and how to report outside gifts and income.

Justice Clarence Thomas is currently under scrutiny for accepting lavish trips from GOP billionaire donor Harlan Crow, who also purchased three Georgia properties from the justice. Thomas did not report the property sales. Of the vacations, Thomas said he had been advised that “personal hospitality from close friends” need not be disclosed.

Senate Judiciary Chair Dick Durbin (D-Ill.), a frequent critic of Supreme Court ethics rules, sent a statement responding to POLITICO’s inquiry about Gorsuch’s sale of the Colorado property.

“We have seen a steady stream of revelations regarding Supreme Court Justices falling short of the ethical standards expected of other federal judges and of public servants,” said Durbin. “The need for Supreme Court ethics reform is clear, and if the Court does not take adequate action, Congress must. The Senate Judiciary Committee will be closely examining these matters in the coming weeks,” said Durbin, who has asked Chief Justice John Roberts to testify next month on the court’s ethics rules.

Kedric Payne, director of ethics at the nonpartisan Campaign Legal Center, said he believes “investments in LLCs require more details than the justice includes in his financial disclosures.“

“This transaction appears to also require naming the buyer. The public has a right to know that justices will fully comply with disclosure rules instead of providing only a tiny peek into their financial disclosures,” he said, noting more facts are needed to distinguish whether it’s a disclosure omission or violation. The center was founded by a Republican former chair of the Federal Election Commission.

Unlike Crow, who bought properties from Thomas, Duffy says he is neither a friend nor a confidant of Gorsuch. But he is one of the nation’s most powerful attorneys.

His Greenberg bio describes him as “A true ‘working CEO,’” and says he “focuses his practice on trial and appellate work in the class action, employment, energy, commercial contract, and product liability areas, serving as counsel in high-profile cases throughout the United States.”

At the time of the sale, Duffy had headed Greenberg Traurig for about a year. A search of his contributions to political candidates revealed that they went primarily to Democrats, including Sen. Kirsten Gillibrand, (D-N.Y.). He contributed the maximum amount allowable for individual donors to Democratic presidential nominee Hillary Clinton in the 2016 election, though he also made contributions in the past to Republicans such as former Sen. John McCain of Arizona and a GOP New York City mayoral candidate, Joe Lhota.

The Duffy family has long resided in Colorado. Duffy attended the University of Colorado Law School and, in 2019, he was the recipient of the “most admired CEO” award by the Denver Business Journal.

Duffy, who described himself as an avid fly fisher, said he’d been looking for the right property for his family for many years. Duffy said he did not know Gorsuch was one of the owners when he made his first offer.

“The fact that he was going to be a Supreme Court justice was absolutely irrelevant to the purchase of that property. It’s a wonderful piece of property and we’re so glad we bought it,” said Duffy.

Gorsuch and his associates purchased the property in 2005 through theirLLC, the Walden Group,which was dissolved after the 2017 sale. The home was originally listed, in July of 2015, for $2.495 million. The fact that the property had sat on the market for so long and that its price had been lowered a couple times suggests the partners were having trouble finding a buyer.

The real estate transaction is another example of how the lack of a firm code of ethics for the court stands in contrast to most other branches of the U.S. government, including the White House and Congress as well as lower court judges.

The code of conduct for lower court U.S. judges says judges should “avoid impropriety and the appearance of impropriety in all activities,” and “discourages frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court” on which the judge serves. Unlike many of the country’s state and federal courts, the Supreme Court lacks a code of conduct.

“This is exactly the type of situation that an ethics code that included vetting of transactions and full disclosure would clear up,” said Kyle Herrig, president of Accountable.US, a progressive research organization. “Without decisive action, the conservatives on the Supreme Court will forever tarnish its reputation in our public life,” he said.

At the time of Gorsuch’s appointment, his ownership of the Colorado property drew attention only for the fact that his co-owners were major figures in the oil and gas industry. Gorsuch’s ties to the oil and gas industry run deep.

As a lawyer at a Washington law firm nearly 20 years ago, Gorsuch represented oil and gas billionaire Philip Anschutz on a variety of matters as outside counsel, and it was through this connection that Gorsuch befriended his future real estate partners.

Anschutz helped Gorsuch win an appointment to an open seat on a federal appeals court in Denver, including directly lobbying the George W. Bush White House....Gorsuch’s connections to Anschutz extend to .

The Walden Group included Kevin Conwick, who had advised Anschutz in deals to buy sports teams and other projects like the Staples Center in Los Angeles, and Cannon Harvey, who oversaw Anschutz’s venture capital investment division...

https://www.movetoamend.org/announcements

mta

by Jasmin Enciu

The Supreme Court is set to decide one of the:{most consequential environmental cases it has heard in decades:(style="box-sizing:border-box"):}:.  West Virginia v. Environmental Protection Agency will address whether the Environmental Protection Agency (EPA) shall continue to have the authority to regulate the levels of greenhouse gas emissions. This case puts the EPA in an extremely vulnerable position. VOX News reporter Ian Millhiser even:{stated:(style="box-sizing:border-box"):}:, “West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”

West Virginiathreatens all government regulations that protect the public, not just the EPA. It is also concerning since the Supreme Court has recently taken an anti-agency regulation stance on many cases. The court has used the “major questions doctrine” in these instances to prevent agency actions from addressing important issues. For example, they recentlystruck down the CDC’s coronavirus eviction mortarium, which paused evictions for Americans who were suffering and not able to make rent due to the rise in COVID-19 cases. The Majority opinionstated: “It is indisputable that the public has a strong interest in combating the spread of the COVID-19 delta variant…but our system does not permit agencies to act unlawfully even in pursuit of desirable ends…it is up to Congress, not the CDC, to decide whether the public interest merits further action here,”

Read more

this means filibuster became a bigger problem?!

https://www.alternet.org/2022/07/supreme-court-2657745095/

Environmentalists and climate change activists were dealt a severe blow on June 30, when the U.S. Supreme Court handed down its 6-3 decision in West Virginia v. EPA and greatly limited the Environmental Protection Agency’s ability to regulate power plan emissions. The decision came during a summer in which extreme weather events, which environmentalists are attributing to climate change, have been especially plentiful — from heatwaves, droughts and wildfires in both the United States and Europe to record flooding in Sydney, Australia (although June-August is winter in Australia because it’s in the world’s southern hemisphere).

London had a record high of 104F/40.3C, and St. Louis, on July 25-26, suffered more than 9 inches of rain — events that, according to climate change activists, serve as painful reminders of how bad a decision the High Court made in West Virginia v. EPA.

But according to Georgetown University law professor Lisa Heinzerling, handcuffing the EPA is only the tip of the iceberg when it comes to the damage the Court’s West Virginia v. EPAdamage will cause. Heinzerling, in an article published by The Atlantic on July 26, warns that the Court’s GOP-appointed supermajority has made regulation in general "much harder" for government agencies.

READ MORE: [Petition to impeach Clarence Thomas tops one million signatures

“Like many governmental agencies, the Environmental Protection Agency has an elaborate process for developing important rules,” Heinzerling explains. “As I saw during the Obama Administration, when I headed the EPA office that oversees this process, getting a major rule over the finish line can take years. Almost every step of the way offers obstacles to addressing any serious environmental problem. This work just got much harder, if not altogether impossible.” [OIRA/OMB?  DQA, SECRET SCI BS]

The Georgetown law professor continues, “In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance — in the Court’s parlance, a ‘major question’ — unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.”

Heinzerling emphasizes that although the Court’s West Virginia v. EPA decision “has the immediate effect of limiting the EPA’s power and flexibility in regulating fossil-fuel-fired power plants under the Clean Air Act,” it “extends beyond that.”

“Any agency that asserts authority over an issue of great economic and political significance could meet a hostile reception in the courts precisely because it has tried to do something big,” Heinzerling warns. “Many agencies will just avoid taking such actions in the first place, knowing the risk. The obvious result could be a federal government with little ability to tackle many of the biggest issues society faces…. The Court’s major-questions doctrine will make effective governance of this country even harder than it has long been.”

READ MORE: [The Supreme Court’s nod to white Christian theocracy

Heinzerling adds, “Somewhat ironically, the first victim is Congress itself. Congress has long addressed important problems by empowering agencies to regulate based on newly developed scientific and technical information. That is what Congress did in the Clean Air Act and in the public-health and workplace-safety statutes the Court narrowed in the COVID cases. All laws with a similar structure, passed in at least implicit reliance on a different interpretive framework from the one the Court has embraced, are now vulnerable to severe judicial cropping.So, while the Court is purporting to hand Congress the baton, in reality, it’s creating a major hurdle that will stand in the way of Congress’ work.”

READ MORE: [The Supreme Court’s illegitimacy is accelerating

an 7 22

In mere weeks, theEnvironmental Protection Agency isset to unveil a supplemental draft rule aimed at cracking down on the oil and gas industry’s rampant methane emissions. This rule, which sidesteps the Supreme Court’s West Virginia v. EPA ruling, provides a necessary advancement to 2016 rules that were rolled out similarly regulating methane emissions as part of the Obama administration’s ambitious climate goals. New rules could not come at a better time, given recent findings of rampant methane emissions in the oil-rich Permian Basin, where some fossil fuel companies are relentlessly polluting the region with nonstop methane emissions.

Taking data from NASA’s Jet Propulsion Lab project known as Carbon Mapper, the Associated Press found dozens of so-called “super emitters” located in the area, of which just 10 companies owned 164 sites responsible for major methane emissions. The Center for Biological Diversity’s Climate Law Institute Director, Kassie Siegel, provided an eye-opening analogy to the methane issue: “If carbon dioxide is the fossil-fuel broiler of our heating planet, methane is a blowtorch,” Siegel told the Associated Press. It’s long been understood that methane is more than 25 times more potent than carbon dioxide.

Yet polluters freely emit methane with little to no consequence because, at this juncture, it is ultimately a company’s responsibility to account for its own bad actions. This has been a massive issue throughout the Gulf South and beyond. In Colorado, local air quality monitoring found that company reports of reduced methane emissions were an outright lie. Officials in towns and counties near Boulder were alarmed that claims of methane emissions being reduced by half weren’t even close to what on-the-ground air quality monitors had found. Colorado is considered a leader in methane emission regulation, yet there is still much work to be done to ensure that fossil fuel companies aren’t continuing to do their worst.

The Associated Press cites years of inaction and the difficulty of tracking methane emissions that are intermittent as major culprits, along with the oil and gas industry’s own practices of simply flaring and venting its methane because companies are overwhelmed by their own output. Regional oversight has all but signaled its support of such actions. An environmental consultant told the outlet that the Texas Commission on Environmental Quality rarely, if ever, inspects oil and gas sites. And the primary agency overseeing onshore oil and gas projects in the state—the Texas Railroad Commission—itself benefits from a lack of oversight, allowing oil-loving commissioners to continue sitting on their hands in favor of constant fossil fuel development and production. If states like Colorado can’t even seem to get things right, it feels like Texas doesn’t even stand a chance to do right by its citizens.

https://www.alternet.org/2022/07/supreme-court-epa-biden-agenda/

mma 7 22

On June 30, the Supreme Court’s conservative majority issued an unsurprisingly devastating ruling on **West Virginia v. EPA** that severely limits the Environmental Protection Agency’s power to make power plants cut the toxic pollution that is driving the climate crisis. Climate advocates and scientists have been watching this case anxiously since 2021, knowing that failing to cut fossil fuel emissions would lead to increasingly destructive climate events such as wildfires, and would hit the most vulnerable communities the hardest.

Despite the clear consequences of hamstringing the EPA, right-leaning U.S. news and politics pages on Facebook characterized its enforcement of environmental protections as regulatory overreach and inaccurately framed the ruling as a win for small government and the economy rather than what it actually is: a victory for the fossil fuel industry and its right-wing allies.

Media Matters compiled and analyzed Facebook posts about West Virginia v. EPA from U.S. news and politics pages between June 30 and July 5 and found that right-leaning pages earned more interactions on their posts during this time frame than left-leaning and ideologically nonaligned pages combined – receiving more than half of all such interactions on less than one-third of total posts about the case.

Key Findings:

In the aftermath of the court’s June 30 decision, right-wing figures celebrated on national TV news and across social media platforms by downplaying or denying man-made climate change, mocking those who reacted negatively to the ruling, and claiming the case will correct an overly controlling EPA. Fox News hosts and guests echoed other right-wing personalities and fossil fuel industry shills, even suggesting that no agency regulation is necessary because the United States already has the “lowest carbon emissions and cleanest water of any of the major countries.”

On Facebook, right-leaning pages celebrated the decision as a victory against federal overreach.

Media Matters found that news and politics Facebook pages posted about West Virginia v. EPA 668 times in the 6 days after the Supreme Court announced its decision. The posts garnered just over 626,000 combined interactions, with right-leaning pages accounting for the majority. Ideologically nonaligned pages earned over 89,000 interactions (just 14%) for 312 posts, left-leaning pages earned about 198,000 interactions (just under 32%) for nearly 137 posts, and right-leaning earned over 338,000 interactions (54%) for 219 posts.

While right-leaning pages had the most interactions, they did not have the most posts. Nonaligned pages made 47% of the total posts, left-leaning pages made about 20% of posts, and right-leaning pages made roughly 33%.

Among the top examples from right-leaning pages that contained misinformation was a post from Ben Shapiro with nearly 22,000 interactions that linked to an article from the Daily Wire. The article quoted Heritage Foundation research fellow Daren Bakst, who claimed that the court had rightfully blocked the EPA from overstepping its boundaries and that only Congress can make certain regulatory decisions under the Constitution.

The Heritage Foundation has received millions of dollars in funding from Koch-connected organizations, as well as considerable funding from the fossil fuel industry, while outwardly denying the scientific consensus on climate change. The foundation has also played a major role in moving courts to the right, and even created a secretly financed program to train law clerks to elevate its views. According to The New York Times, Heritage helped the Federalist Society compile the lists of potential Supreme Court nominees from which President Donald Trump chose to appoint Justices Neil Gorsuch and Brett Kavanaugh. Both justices voted to stifle the EPA. However, the Daily Wire article ignored these connections between the conservative think tank, its financial backers in the fossil fuel industry, and the court’s ruling. 

The article also quoted Missouri Attorney General Eric Schmitt, who baselessly claimed that the Clean Power Plan would “lead to higher utility bills, job loss and overall increased energy prices.” While these regulations were never implemented, the plan was predicted to have cut electricity bills by 7% and deliver up to $34 billion in health benefits.

Another popular left-leaning post about the case from former President Barack Obama,which had over 55,000 interactions, mentioned climate impacts on vulnerable populations and urged Congress to “pass President Biden’s climate and clean energy investments.” Though right-leaning posts received more engagement overall, Richardson and Obama’s posts each had twice as many interactions as the top right-wing misinformation posts.

Although left-leaning and nonaligned pages were vocal about the gravity of the Supreme Court’s decision, the right was was still able to co-opt much of the conversation on Facebook, shifting attention and blame away from the small group of right-wing figures and industry executives who benefit from the ruling to hamstring environmental protections in the face of the worsening climate crisis, leaving the rest of us to grapple with an uncertain future.

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Signed into law by President Richard Nixon in 1970 with the intention of reducing and controlling air pollution nationwide, the Clean Air Act is the nation’s primary federal air quality law, giving the Environmental Protection Agency (EPA) the authority to regulate air emissions from sources that are either stationary (e.g., power plants) or mobile (e.g., vehicles).

This article was produced by Earth | Food | Life, a project of the Independent Media Institute.

On June 30, the Supreme Court limited that authority with its controversial ruling in the case of West Virginia v. Environmental Protection Agency, dealing a heavy blow to President Joe Biden’s climate agenda. At the center of the case is Section 111 of the Clean Air Act, which establishes mechanisms that the EPA can use in order to control emissions of air pollutants from stationary sources like power plants.

Writing the opinion for the conservative majority, with the three liberal justices dissenting, Chief Justice John Roberts said that Section 111 does not give the EPA the authority to regulate greenhouse gas emissions from existing power plants by “generation shifting”—which could force power plants to move away from coal to renewable energy. The ruling removes a primary mechanism the Biden administration has for achieving the president’s goal of halving carbon dioxide emissions by 2030—and moving the nation to a low-carbon economy.

Major Questions

Roberts said that the basis for the court’s decision was the “major questions doctrine” (MQD)—a phrase that no previous Supreme Court majority had explicitly invoked. In the majority opinion, Roberts writes that the MQD has now been invoked “because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

He said that if lawmakers had wished to grant the EPA the power to mandate how power plants generate electricity, the law should have stated “clear congressional authorization,” adding that “our precedent counsels skepticism toward EPA’s claim” that the law “empowers it to devise carbon emissions caps based on a generation shifting approach.” Basically, the ruling states that the EPA would overstep its remit in its regulation of power plant emissions if it mandated a move to renewable energy.

Justice Elena Kagan, writing in dissent, said that in using “capacious terms” in Section 111, Congress gave the EPA a wide berth in designing its emission reduction rules. “The current Court is textualist only when being so suits it,” she writes. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” She further writes that the ruling “strips” the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”

Cloudy: Zero-Carbon Future

If solar and wind energy are fully integrated into the global energy mix, renewable sources could provide up to 80 percent of the world’s electricity, according to the International Renewable Energy Agency, an intergovernmental organization based in Abu Dhabi that supports nations in the transition to sustainable energy. The United States plays a central role in the global shift to a low-carbon—and ultimately, zero-carbon—economy: After China, it is the world’s second-biggest consumer of energy.

Generating electricity without emissions is one of the primary strategies we have in order to achieve net-zero emissions—something that the National Academies of Sciences, Engineering, and Medicines asserts is technologically feasible in the U.S. by 2050.But by limiting the federal government’s ability to cap emissions by mandating a shift to renewable power generation, the Supreme Court has made a zero-carbon future more difficult not only for the U.S. but also for the world. “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean,” Kagan wrote in the court’s dissenting opinion. This is not just a problem in the U.S.: Several islands in the northern Solomon Islands, a nation of hundreds of islands in the south Pacific, have already been swallowed by the rising sea levels.

“Whatever else this Court may know about, it does not have a clue about how to address climate change,” Kagan writes. “And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

Dena Adler, a research scholar at the Institute for Policy Integrity at New York University School of Law, also questioned Roberts’ highly irregular use of the MQD. “The major questions doctrine is in part problematic because Congress has legislated for decades with an expectation that it can broadly authorize agencies to use their expertise,” she told E&E News. “Yet, as the court applied it today, the doctrine looks skeptically on agencies regulating under this broad authorization.”

In a statement, EPA Administrator Michael S. Regan said he is “deeply disappointed by the decision,” but noted that the agency “will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.”

‘Supremely Stupid’

The reaction from environmentalists has been unanimous and scathing.

John Noël, a senior climate campaigner with Greenpeace USA, called the ruling “irresponsible” and “supremely stupid,” in an email. “This ruling is going to hurt people. It’s going to hurt wildlife. It’s going to make it easier for business owners to challenge clean air regulations. If there was ever a doubt that this Supreme Court favors the powerful over the people, it’s gone.”

“How much damage can a conservative Supreme Court do to our rights in just a couple of weeks? Unfortunately, we know the answer, and it’s grim,” wrote actress and activist Julia Louis-Dreyfus, in an email.

“We should be outraged by what the Supreme Court has done,” said Jason Rylander of the Center for Biological Diversity, a nonprofit headquartered in Tucson, Arizona, in an online press briefing on July 1.

Kevin S. Curtis, the executive director of the Washington, D.C.-based nonprofit NRDC Action Fund, said in an email that the “deeply damaging” ruling “has set us back half a century—at a moment when… we have no time to lose,” adding that the decision is “radically out of step with settled law, scientific and medical consensus, and widely held public opinion.”

Biden’s Climate Toolbox

It is important to note that, while representing a significant setback to executive climate action, the ruling restricts—but does not eliminate—the agency’s ability to reduce power plants’ carbon pollution. President Biden still has an array of levers at his disposal, several of which he has yet to pull. He can, for example, declare a climate emergency under the National Emergencies Act, which would unlock a variety of presidential powers. “If Biden were, for instance, to ban just crude oil exports, he could cut greenhouse gas emissions by up to 165 million metric tons each year—the equivalent of shuttering 42 coal plants,” write Jean Su and Maya Golden-Krasner, both of the Center for Biological Diversity, in the Nation.

“President Biden must take charge as the climate president,” Gaby Sarri-Tobar of the Center for Biological Diversity and Ted Glick of Beyond Extreme Energy wrote in an email. “He’s already shown a willingness to do this by invoking the Defense Production Act to boost domestic manufacturing of renewable energy technology and advance energy justice by giving frontline and labor communities a seat at the table.”

Additionally, states and local governments can also regulate their own emissions. “A bill passed in Maine [in 2019], for example, calls for emissions at 80 percent below 1990 levels by midcentury, with a halfway goal by 2030,” writes Hillary Rosner for Audubon, a nonprofit environmental organization. “And Hawaii’s 2018 legislation sets a goal of carbon neutrality by 2045. Connecticut and California, meanwhile, have been working to curb emissions for more than a decade.”

Lawmakers on Capitol Hill could also enact far-reaching clean energy legislation—and could even amend Section 111 of the Clean Air Act to give the EPA explicit authority to move power plants toward renewables in order to meet federally mandated emission reductions. And voters could elect and support climate-focused lawmakers—and get their friends, families and community members to do the same.

When the Going Gets Tough, the Tough Get… Voting

Curtis of the NRDC Action Fund said that the ruling “[shows] us that we cannot take legal and federal protections for granted.” Part of not taking those protections for granted means participating in our democracy, and that means voting, particularly casting ballots during midterm elections when federal legislators are elected. It is the members of the House and Senate who decide the federal government’s legislative agenda.

To put the nation on a zero-carbon pathway—and to withstand attacks from a conservative, activist Supreme Court—federal lawmakers must pass clear and strong climate legislation. That means getting climate-focused legislators into office on Capitol Hill. And that means getting climate-focused voters to cast their votes during the midterm elections.

In his email, Curtis called for a midterm election “get-out-the-vote” campaign to “defeat the anti-environment legislators who could pave the way for a conservative agenda that dismantles our rights and our future.” Similarly, the EPA’s largest union, AFGE Council 238, which called the court’s decision a “colossal mistake,” urged people to “demand climate justice” from their elected representatives.

“Without meaningful legislative progress in the coming months… the country will fall far short of its international pledges, which, given the scale of American emissions, will make it almost impossible for the world as a whole to fulfill its already unlikely targets,” writes David Wallace-Wells in the New York Times. “If Republicans win control of Congress in the November midterms, then the window on the prospect of such legislation may be shut for at least a few years.”

The bottom line is that the ruling, while disheartening (and to the environment and public health, even dangerous), is not a death knell for climate action. Like pro-choice supporters disappointed by the court’s recent overturning of Roe v. Wade, those who are concerned about the court’s EPA ruling could use this moment as a rallying cry to step up climate action. If it weren’t already abundantly clear, the Supreme Court—or rather, the conservative majority of the Supreme Court—has underscored that a fundamental part of climate action would be going to the polls during this year’s midterm elections.

Ensuring a healthy environment for ourselves, our families and our fellow Earthlings—for this and future generations—means getting involved in the political process, and that means voting. Voting also means getting the right to complain. So the next time you hear someone grumbling about the “supremely stupid” Supreme Court decision, ask them: “Are you voting on November 8?”

Author Bio: Reynard Loki is a writing fellow at the Independent Media Institute, where he serves as the editor and chief correspondent for Earth | Food | Life. He previously served as the environment, food and animal rights editor at AlterNet and as a reporter for Justmeans/3BL Media covering sustainability and corporate social responsibility. He was named one of FilterBuy’s Top 50 Health & Environmental Journalists to Follow in 2016. His work has been published by Yes! Magazine, Salon, Truthout, BillMoyers.com, CounterPunch, EcoWatch and Truthdig, among others.

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Right-wing media and climate deniers celebrate Supreme Court ruling limiting federal government's power to tackle climate change | Media Matters for America

the Supreme Court’s 6-3 decision inWest Virginia v. Environmental Protection Agency vastly curtails the EPA’s ability to regulate carbon emissions from power plants, thus making it more difficult for the federal government to act on climate change. The case is a result of a “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.”

Prominent climate deniers (many of whom have financial ties to the fossil fuel industry) and right-wing media figures are reacting to the decision by downplaying or denying the human role in climate change, claiming the move will correct for an overly controlling EPA, and generally celebrating.

[reaction?]

downplaying or denying manmade climate change and mocking those who don’t

Ben Shapiro, whose Daily Wire is funded by fracking billionaires,mocked “leftists” who are upset about the decision, tweeting, “Preparing for the wails of tearful fury from Leftists proclaiming that now that SCOTUS has said Congress must regulate carbon emissions, not the usurpatious EPA, the world will boil. In 3...2...1…” Twitter, [6/30/22]

Fox Business’ Larry Kudlow, appearing on America’s Newsroom dismisses the need for climate regulations under the EPA by falsely claiming, “The United States has the lowest carbon emissions and the cleanest water of any of the major countries. … We have clean air. We have clean water. We have done a great job on endangered species. We shouldn't have these overreaching overbearing regulations.”Fox News, *America’s Newsroom*, [6/30/22]

Right-wing TV personality John Stossel, who has a long career of climate denial, downplayed climate change in a tweet about the decision: “The Supreme Court just ruled that ‘Congress did not grant EPA ... authority to devise emissions caps.’ Good. The EPA overstepped, as all administrative agencies eventually do. Anyway, climate change, while real, is grotesquely overhyped.” Twitter, [6/30/22]

Podcaster Steven Crowder cast doubt on the idea that climate change is caused by humans. “You have to go through a few different sets of beliefs to be upset with this decision. All right. You have to believe that climate change, not global warming, that climate change is real. … You have to believe that human beings are the primary cause of it. … You have to believe that it is going to have catastrophic results imminently. … And you have to believe that we are capable of actually stopping nature’s course and preventing those catastrophic results.” Crowder also said, “I think Greta Thunberg is full of shit.”:{ BlazeTV, :{Louder with Crowder:(style="box-sizing:border-box"):}:, :(style="background-color:#ffff33;"):}:[6/30/22]

Joe Bastardi,a weather forecaster and climate denier, who used to regularly appear on Fox News to downplay extreme weather events, tweeted, “I can not share the ‘elation’ of my colleagues on the Supreme Court EPA decision, I have seen them for too long, They will find a way around, and exhaust people taking them to court. These are Marxists and Zealots, and they only obey what suits them.” Twitter, [6/30/22]

In a tweet thread, Steve Milloy, a climate denying former coal and tobacco shill who has a long history of appearing on right-wing TV, said it is “BS” for the dissent opinion in the Supreme Court decision to say “climate change's cases and dangers are no longer subject to serious doubt.” Later in the thread, he called climate change “a hoax.” Twitter, [6/30/22]

Fox News host Sean Hannity used the court case to attack people who believe that climate change is a threat, stating, “I don't see this Democratic Party ever giving up. I mean, they cling to this cult of climate alarmism. I mean, it's more than a religion to them. It's like you have to deprogram them and I don't even know if you could deprogram them. It's like they have been brainwashed in a cult.” Fox News, *Hannity*, [6/30/22]

Newsmax host Chris Salcedo called the decision “a major blow to the Democrats’ man-made global warming religion.” Newsmax, *The Chris Salcedo Show*, [6/30/22]

Steve Bannon says the decision is a major win for the constitution and our liberties, and a major setback for the administrative state,“The deconstruction of the administrative state is one of the central issues that we face … on a global basis. … It's more than a bureaucracy, it's basically a control function where these global elites think they’re smarter than you.” Real America’s Voice, *War Room: Pandemic*, [6/30/22]

West Virginia Attorney General Patrick Morrisey, who was a leader of the charge against the Clean Power Plan and who has received tens of thousands of dollars in campaign contributions from the coal industry, on America’s Newsroom, said, “We have been arguing for many, many years while everyone has been focusing on the question of climate change, we have said one simple thing — hat if you have a major issue of the day, Congress needs to be the decider, not an unelected bureaucracy. That’s what today's decision means — it ensures that these unelected bureaucrats are not going to be seizing power across the board.” Fox News, *America’s Newsroom*, [6/30/22]

While interviewing disgraced former EPA Administrator Scott Pruitt, Schmitt relished the decision, stating, “It's an assault on big government and bureaucracy, which I absolutely love. You know, the way this is, the way they operate now they try to just pull off all these moves, they try to just — executive orders and they try to go into places where they don't belong. And they want to control you, just with their political power and that's just not the way it's supposed to be.” Newsmax, *Rob Schmitt Tonight*, [6/30/22]

Climate denier Marc Morano celebrated the decision: “‘EPA loses – America Wins’: Supreme Court rules against overreach by EPA” Twitter, [6/30/22]

Steve Milloy gloated about the decision, tweeting, “WINNING! EPA loses. ‘Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.’” Twitter, [6/30/22]

A Fox Newsarticle gleefully tracked the reactions of major media outlets to the decision, running with the headline “'Dear Supreme Court, Thanks for Nothing:' Dems and media melt down over high court's EPA decision.” Foxnews.com, [6/30/22]

On Fox Business’ Kudlow, former Trump EPA Administrator Andrew Wheeler celebrated the decision, stating, “This is … a powerful decision today, and I have to say, I feel vindicated. I feel vindicated on behalf of myself and my entire staff at the Trump EPA.” Fox Business, *Kudlow*, [6/30/22]

Fox host Brian Kilmeade called it “probably the best news in a long time for the economy,” adding, “These militant green lunatics have been taking over our economy to the detriment of the American people while basically giving everything to China and Russia and Iran, our enemies, who couldn't care less about the environment. I think this is an intelligent way to do it.” Fox News, :{Fox & Friends:(style="box-sizing:border-box"):}:, [7/1/22

sharon l

How Charles Koch Purchased the EPA Supreme Court Decision (theintercept.com)

TODAY’S 6-3 SUPREME COURT decision restricting the ability of the Environmental Protection Agency to regulate carbon emissions will benefit power plants and fossil fuel companies throughout the U.S. and profoundly hobble the government’s ability to address the worsening climate catastrophe.

The decision, written by Supreme Court Chief Justice John Roberts and joined by conservative Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, finds that the EPA does not have the authority to impose caps on carbon emissions by mandating a shift to cleaner energy sources. The ruling means that Congress, rather than the EPA and its staff of scientific experts, will handle the critical task of curbing greenhouse gas emissions.

“Today, the Court strips the EPA of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” Justice Elena Kagan wrote in a dissenting opinion joined by Justices Sonia Sotomayor and Stephen Breyer. “Whatever else this Court may know about, it does not have a clue about how to address climate change. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

A number of energy magnates and fossil fuel trade groups pushed for the case that could kneecap the agency and boost their profits. But perhaps no one did more to bring West Virginia v. Environmental Protection Agency to the Supreme Court — or ensure that ultraconservative justices would be on the bench to decide in the companies’ favor — than Charles Koch.

the billionaire energy executive who reigns over Koch Industries is known for playing the long game. He bought up pipelines in advance of the fracking boom — and waited calmly until they delivered billions in profits. He invested in obscure, failing companies even though he knew that it would take years before they could add to his bottom line. And he has been cautious as he’s ventured into new markets — his empire now includes glass, pulp and paper, chemicals, agricultural products, and commodities trading — making small acquisitions to see if they’d be profitable before gradually taking over.

Such patience and strategic use of his enormous wealth have benefited Koch handsomely. His net worth has steadily climbed to more than $60 billion. Koch Industries, which makes more than half of its money from fossil fuels and owns refineries, petrochemical plants, and thousands of miles of oil and gas pipelines, is now the second-biggest privately held company in the country.

Koch Industries’ Flint Hills Resources Pine Bend refinery in Hastings, Minn., on July 12, 2021.

Photo: Jaida Grey Eagle/Bloomberg via Getty Images

The Kochtopus

To ensure further growth of his riches even as science showed that the continued use of fossil fuels would accelerate climate disaster, Koch has funneled some of his vast fortune into an extraordinary network of political front groups, lobbying efforts, think tanks, and activist networks that aim to stifle climate action. For decades, the Kochtopus, as some call his many-tentacled political influence machine, has sought to undermine not just the environmental regulation in Koch Industries’ path but also the science and philosophy of government on which it is based.

Koch’s lobbyists and political operatives helped kill a 2009 bill aimed at tackling climate change through a cap-and-trade system that could have cut into his companies’ profits. While the mounting findings of climate scientists led other titans of industry to begin adjusting their business plans to lower carbon emissions, Koch-funded groups were among the first climate denialists, flatly lying about the well-documented planetary trend of global warming and then schooling lawmakers on the alternate reality they had crafted. Koch also pioneered the attack on Republicans from the right, pushing the party into its current extremism.

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Pack the Supreme Court

Today’s Supreme Court decision marks perhaps the biggest payoff yet for Koch’s decades of plotting against environmental regulations — and the most devastating loss for everyone else. Three of the extremist judges who joined the decision — Gorsuch, Barrett, and Kavanaugh — wound up on the Supreme Court in large part because of Koch’s activism and contributions.

Americans for Prosperity, an astroturf political group founded by Charles Koch and his brother David, conducted extraordinary campaigns to put all three judges on the highest bench. To support Kavanaugh’s nomination, the group reached out to more than 1.2 million Americans through mail, phone calls, and knocking on doors, according to a flyer released by the organization. The group also pushed hard for Barrett, whose father worked for Shell and the American Petroleum Institute, a powerful trade group for the oil and gas industry. And it campaigned for Gorsuch, whose mother presided — disastrously — over the EPA under President Ronald Reagan. Charles Koch is also closely connected to Leonard Leo, co-chair of the Federalist Society, a conservative organization Koch has supported directly and through his family foundation.

The case itself can also be tied directly to Koch. The challengers are27 Republican attorneys general, who were supported by the Koch-funded Republican Attorneys General Association. At least four Koch-funded entities have filed amicus briefs in the case: the Cato Institute, which was co-founded by Charles Koch; the Competitive Enterprise Institute; the New Civil Liberties Alliance; and Americans for Prosperity. Another foundation that filed an amicus brief, the Landmark Legal Foundation, denied receiving Koch funding, though Jane Mayer reports in her book “Dark Money” that Koch helped subsidize it.

The EPA headquarters in Washington, D.C., on June 29, 2022.

Photo: Stefani Reynolds/AFP via Getty Images

Taking Aim at the EPA

Koch’s antipathy for the EPA began with the founding of the agency in 1970. “It is the one regulatory agency that is on his ass every single day and has authority over all his operations,” said Christopher Leonard, author of “Kochland,” a history of Koch Industries and its political activities. “Every single day this agency is like a traffic cop clocking Koch’s speed on the highway. The EPA is sending agents to inspect Koch’s facilities. The EPA is monitoring the level of pollution coming out of spillways from Koch facilities. Koch has to employ almost buildings full of lawyers just to document their air emissions every year from their refineries, from their natural gas plants, from the Georgia-Pacific plant.”

The original case was about the Clean Power Plan, the Obama administration’s effort to limit carbon emissions from power plants, which are the second-largest source of U.S. greenhouse gas emissions. But that plan no longer exists, having been struck down by the Trump administration. Nor does its Trump-era replacement. In practical terms, the ruling will hamstring the Biden administration, which has pledged to cut greenhouse gas emissions 50 percent economywide by 2030. The administration is in the process of crafting its own rule affecting power plant emissions, which is expected next year. Ryan Grim “The decision takes off the table the approach that was used in the Clean Power Plan, the most efficient, effective way to address these emissions,” said Kirti Datla, director of strategic legal advocacy at Earthjustice. While the Biden administration will still be able to take less sweeping steps to limit carbon, such as requiring emissions controls on individual power plants, “this makes their job much harder,” Datla said.

Now Congress, rather than the EPA’s environmental experts, will be responsible for drafting the highly technical plan for limiting emissions from power plants. The regulatory process is expected to be far slower and less effective, which, according to Lisa Graves, executive director of True North Research, was exactly the point of the suit. “These politicians in black robes know full well that, with Mitch McConnell in a leadership position doing the bidding of Koch and the oil and gas industry, this Congress will not pass any substantial climate change mitigation legislation,” said Graves, adding that the timing of the decision couldn’t be worse. “Now and in the coming years are the only window we have to really stem the tide of the truly devastating climate changes that are underway.”< Broader Implications< The motivations for the West Virginia case go beyond the individual and corporate pursuit of financial gain. “They’re doing it to make more money. But it’s also bigger in the sense they want to cripple the federal government,” said Leonard.

Indeed, the effects of the ruling will likely far surpass the EPA’s ability to limit carbon emissions from power plants. “It’s going to trim back the sets of regulations that they even consider,” said Leonard. “It’s a slow pushback of the EPA and a diminishment of its power over time.”

The West Virginia decision will also likely chasten other federal agencies, according to Datla. “It sends a signal to agencies that if they’re approaching big problems for the first time under their statutory authority, or if they’re tackling an existing problem, but using kind of a new approach, that either the court is going to be skeptical, or at the very least, somebody is going to bring a challenge based on all of the language that is in this opinion.”

Ironically, the decision that weakens the federal government follows on the heels of Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade and vastly extended the reach of the state to control what people can do with their bodies. That decision, too, grew out of seeds that Charles Koch planted years ago. But the profound step backward for reproductive freedom seems to have been an incidental result of the billionaire’s effort to grow his fortune.

One of Koch’s most effective policy creations is the American Legislative Exchange Council, a right-wing activist network that drafts model state legislation, which is then introduced around the country. “Koch funded ALEC to do stuff like deregulate the utilities industry,” said Leonard. “But what animated ALEC was anti-abortion laws.” Indeed, the grassroots network Koch created took up the issue even as he himself was indifferent about it.

“Koch doesn’t care at all about Roe v. Wade. Religious and cultural issues have zero relevance to him,” said Leonard, who added that Koch saw the abortion issue as a “sideshow.”

In contrast, Koch cares profoundly about West Virginia v. EPA. “This decision represents the culmination of years of attacks by Koch-funded groups on these rules,” Graves said. “It is a win for Charles Koch and the multibillion-dollar oil and gas industry and a huge loss for the American people.”

Update: July 1, 2022

This article has been updated to reflect the Landmark Legal Foundation’s denial that it has ever received Koch funding.

'Payoff for 40 Years of Dark Money': Supreme Court Delivers for Corporate America (**commondreams.org)**

over the past several decades, corporate lawyers, right-wing activists, Republican officials, and dark money groups with deep pockets have been laying the groundwork for a far-reaching legal assault on the federal government's ability to regulate U.S. industry—including the oil and gas sector threatening the planet.

On Thursday, their investments bore major fruit.

In a 6-3 decision along ideological lines, a Supreme Court packed with right-wing judges handpicked and boosted by some of the same forces leading the yearslong crusade against the power of regulatory agencies—which conservatives often dub the "administrative state"—dramatically restricted the Environmental Protection Agency's authority to rein in greenhouse gas pollution from power plants.

On its face, the ruling in West Virginia v. EPAappears limited in scope, pertaining to a specific section of the 1970 Clean Air Act and zeroing in on the reach of a single government agency.

But experts saw in the decision, authored by Chief Justice John Roberts, an ominous warning that the Supreme Court is ramping up its assault on the federal government's capacity to act on matters ranging from environmental protection to workplace safety to public health to consumer protection.

Lawrence Gostin, a professor at Georgetown Law, argued that the high court's right-wing majority wasn't really concerned with the Clean Power Plan, an Obama-era zombie regulation at the center of West Virginia that never even took effect.

"It was the conservative court's larger agenda to gut the regulatory state and decimate executive powers to protect Americans' health and safety," wrote Gostin, who contended that "the ripple effects of West Virginia v. EPA are profound" and could hinder other key federal agencies such as the Centers for Disease Control and Prevention, the Food and Drug Administration, and the Occupational Safety and Health Administration.

"Congress doesn't have a magic crystal ball that can predict every future health hazard," Gostin added. "Nor does Congress have the expertise. That's why Congress has delegated wide powers to health and safety agencies. They have the expertise and flexibility to safeguard the public from major threats."

William Boyd, an environmental law professor at the University of California Los Angeles, agreed with Gostin's analysis, telling Voxthat he believes the West Virginiaruling "can be seen as part of a larger trend directed at restricting the ability of EPA and other agencies to protect health, safety, and the environment."

"This starts at the top with the Supreme Court," he noted, "but it will ripple through the federal judiciary as decisions accumulate and the jurisprudence that has taken over the last half-century to accommodate the regulatory state is diminished and hollowed out."

The West Virginia ruling was a long time in the making, the product of coordinated efforts by GOP attorneys general, the fossil fuel industry, and shadowy organizations such as the Federalist Society.

For years, the industry-backed legal group has been building up a pipeline of far-right judges that Republican politicians have dutifully attached to the nation's judiciary, pumping young, often under-qualified, and business-friendly judges into district courts, appeals courts, and the highest court in the land. (All six sitting conservative Supreme Court justices have ties to the Federalist Society.)

Among the organization's donors is Koch Industries, the multinational oil and gas behemoth whose current billionaire leader, Charles Koch, and his late brother David have financed a vast apparatus of think tanks and advocacy organizations that've grown so influential that they frequently write entire laws for GOP legislatures to rubber stamp.

As The Lever's Andrew Perez reported earlier this year, groups linked to the Koch network took a serious interest in the West Virginia case, which was led by a group of Republican attorneys general and major coal companies. The Supreme Court agreed to take up the case last October.

"Koch's Americans for Prosperity Foundation filed an amicus brief in the case arguing that the EPA should not be permitted to 'impose its will on the nation through regulatory diktat,'" Perez observed. "Several more Koch-funded dark money groups have filed similar amicus briefs in the case. That includes the...Mountain States Legal Foundation."

"The New Civil Liberties Alliance also received $1 million from the 85 Fund, a charitable foundation steered by Trump judicial adviser Leonard Leo," Perez added. "A longtime executive at the Federalist Society, a conservative lawyers group, Leo also helps direct the Judicial Crisis Network, a dark money group that spent tens of millions leading the confirmation campaigns for Gorsuch, Kavanaugh, and Barrett."

As Jane Mayer, the award-winning investigative journalist and author of Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, put it Thursday, the West Virginiadecision is "payoff for 40 years of dark money from some of the planet's biggest polluters. Top Republican officials and lawmakers responded enthusiastically to Thursday's ruling, which is likely to have global consequences given the United States' status as the largest historical emitter of carbon dioxide.

"Today, the court made the correct decision to rein in the EPA, an unelected bureaucracy," West Virginia Attorney General Patrick Morrisey, who spearheaded the case.

"And we're not done," he added. "My office will continue to fight for the rights of West Virginians when those in Washington try to go too far in asserting broad powers without the people’s support."

Senate Minority Leader Mitch McConnell (R-Ky.), who is hoping to take back the upper chamber's gavel in the upcoming midterms, hailed the majority's opinion and warned "other overeager bureaucrats" to "take notice."

In the decision itself, the court's conservatives defined West Virginia v. EPAas a "major questions case," invoking an obscure and novel legal doctrine that insists federal agencies must have explicit and specific congressional authorization to act on matters deemed politically or economically significant.

As Bloomberg's Noah Feldman explains, "the major questions doctrine appears to take a very large bite out of" the so-called Chevron doctrine, which states that "the courts must defer to agencies' reasonable interpretation of laws passed by Congress."...The implications of the major questions doctrine's emergence as a guiding principle for the court are vast. In her dissent in West Virginia, liberal Justice Elena Kagan observed that "the court has never even used the term 'major questions doctrine' before."

"Let's say the obvious: The stakes here are high," Kagan wrote. "Yet the court today prevents congressionally authorized agency action to curb power plants' carbon dioxide emissions. The court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening."

Jenny Breen, associate professor at the Syracuse University College of Law, similarly argued in an email to Common Dreams that the court's West Virginia ruling "relies on judicial overreaching to undermine public policy and the legitimacy of government more broadly."

"The majority did not like the agency's approach to regulating power plants," Breen wrote. "But only in this new universe of governance-by-judicial-fiat should any of us care what John Roberts thinks is the best approach to regulating power plants. Congress gave that job to the EPA, not the Supreme Court."

"In taking that decision for itself," Breen added, "the court deals yet another blow to the ability of the United States to democratically govern in the face of severe public policy crises."

While the conservative-dominated court may not have overtly wielded the major questions doctrine against the federal government's regulatory powers in previous cases, Mekela Panditharatne and Martha Kinsella of the Brennan Center for Justice note that it has "obliquely" relied on the doctrine to "strike down the Centers for Disease Control and Preven­tion's evic­tion morator­ium and block the Occu­pa­tional Health and Safety Admin­is­tra­tion's mandate that large employ­ers ensure their work­ers are vaccin­ated or frequently tested for Covid-19."

"In Thursday's case, the court embraced the doctrine in a full-blown way, making clear that it views a wide range of agency protec­tions as poten­tial targets for abol­i­tion," they warned. "By gutting regu­lat­ory agen­cies' abil­ity to use exist­ing stat­utory author­ity to respond to contem­por­ary soci­etal needs, the court places the onus on Congress to amend count­less laws to expressly author­ize agen­cies to 'make decisions of vast economic and polit­ical signi­fic­ance,' whatever that means."

"The sugges­tion that Congress just needs to pass more expli­cit instruc­tions to agen­cies in order for the govern­ment to perform core func­tions is easier said than done," Panditharatne and a Kinsella added. "For his part, Justice Gorsuch in concur­rence, alarm­ingly, raises the specter that agency action without express congres­sional author­iz­a­tion could be deemed to viol­ate the Consti­tu­tion, a posi­tion the dissent vehe­mently rejects."

The institutional obstacles for Congress to step into the void created by the court's ruling are enormous, including but not limited to the Senate's 60-vote legislative filibuster. Corporate-friendly Democrats and the Republican Party—made up of industry-funded lawmakers wedded to mass deregulation—are also sure to stonewall any congressional attempts to make regulatory agencies' statutory authority to fight the climate emergency and other crises more explicit.

The ultimate result, observers fear, could be the sweeping defanging of the federal government that corporate America and the conservative movement have sought for decades.

"These politicians in black robes know full well that, with Mitch McConnell in a leadership position doing the bidding of Koch and the oil and gas industry, this Congress will not pass any substantial climate change mitigation legislation," Lisa Graves, the executive director of True North Research, told The Intercept.

In a series of tweets on Thursday, the Green New Deal Network asked Americans to "imagine a future where the USDA can't regulate what chemicals are in your food."

"Imagine a reality where the FDIC can't protect your money from greedy bankers and investors. And imagine a world where the FDA can't prevent pharmacies from stocking up with literal poisons," the group added. "This is the endgame."

https://www.alternet.org/2022/06/supreme-court-2657590976/

in spite of the accelerating pace of global warming, the conservative majority of the Supreme Court dealt a major blow to the Biden administration's attempts to slash emissions through regulatory powers resting in federal agencies. In a 6-3 ruling, the Supreme Court on Thursday struck down the federal government's authority to regulate in areas like climate policy or food and worker safety.

The case, first heard by the Supreme Court back in February, was a lawsuit filed last year by West Virginia Attorney General Patrick Morrisey, who argued that the Environmental Protection Agency (EPA) does not have the power to regulate the state's power plant emissions. At the center of the court's debate was how much regulatory authority is enshrined in the Clean Air Act, a 1963 air quality law designed to reduce pollution. That act, Morrissey and 19 other attorneys general argued, does not grant the EPA the ability to put caps on power plant emissions – a matter which they've otherwise said should be settled by the legislature.

"Today, the court strips the EPA of the power Congress gave it to respond to the most pressing environmental challenge of our time," Justice Elena Kagan wrote in dissent. "The Court appoints itself— instead of Congress or the expert agency— the decision-maker on climate policy. I cannot think of many things more frightening."

The case has its roots in the Obama era, when legislators drew from the Clean Air Act (CAA) to enact the Clean Power Plan (CPP), a 2014 policy that put formal limits on greenhouse gas emissions, with the explicit goal of mitigating climate change. At the time, numerous coal companies fired off legal challenges against the law, though a court ordered a stay on the law. In 2017, after withdrawing from the Paris Agreement, Donald Trump ordered the EPA to review the CPP and had the CPP repealed with the Affordable Clean Energy Rule, a watered-down version of the CPP that was ultimately shot down by a federal appeals court. Since then, the Biden administration has not explicitly addressed whether the EPA can put restrictions on power plant emissions.

[aoc tweet cataclysmic"]

historically, the authority to administer restrictions under laws like the CAA and the CPP had been broadly vested in the executive branch through various federal agencies. That authority was affirmed in a ruling handed down by the U.S. Court of Appeals for the District of Columbia Circuit at the beginning of the Biden administration, allowing the EPA to recommend that states use a "best system of emission reduction" as part of the president's push for more renewables.

Last year, President Biden's solicitor general, Elizabeth B. Prelogar, asked the Supreme Court not to intervene on the matter, saying that the administration was "taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years." She also assured plaintiffs that Biden would not resurrect the CPP.

But that didn't stop the court from taking up the case. During oral arguments in February, many of the court's justices cited the major question doctrine, which holds that an agency lacks the authority to regulate something that is not directly addressed in statutory law. At the time, Politico reported that the proceeding suggested the court might ax the EPA's broad authority to regulate power plants and punt the issue to Congress.

EEI?!

neither party? maj Q

BRIEF OF SCHOLARS OF CONGRESSIONAL ACCOUNTABILITY AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY

rUTH GREENWOOD Counsel of Record THERESA J. LEE ELECTION LAW CLINIC HARVARD LAW SCHOOL 6 Everett Street, Suite 5112 Cambridge, Massachusetts 02138 (617) 998-1010 rgreenwood@law.harvard.edu Counsel for Amici Curiae

INTEREST OF AMICI CURIAE .................. 1 SUMMARY OF THE ARGUMENT ................ 1 ARGUMENT .................................... 6 I. THE MAJOR QUESTION AND NONDELEGATION DOCTRINES ARE BASED ON ACCOUNTABILITY .......................... 6 II. ACCOUNTABILITY REQUIRES THE SATISFACTION OF A SERIES OF CONDITIONS ... 9 III. REQUIRING CONGRESS TO DECIDE MORE ISSUES WOULD NOT RESULT IN SIGNIFICANTLY GREATER ACCOUNTABILITY ......................... 13...

https://en.wikipedia.org/wiki/West_Virginia_v._EPA  6 22 flagged current event

west Virginia v. Environmental Protection Agency, 597 U.S. _ (2022), was a U.S. Supreme Court case related to the Clean Air Act and the ability of the Environmental Protection Agency (EPA) to regulate carbon dioxide emissions related to climate change. The case centers on language of 42 U.S.C § 7411 (d), dealing with the EPA's authority to regulate emissions from existing power plants, which when amended and signed into law in 1990 mistakenly included contradictory language from both the House and Senate's version of the bill that never was reconciled, leaving the EPA to make its interpretation of this section.

The suit stems from a 2015 Obama administration EPA rule, the Clean Power Plan, based on a statutory interpretation of section §7411(d) towards meeting the Paris Agreement in carbon dioxide emissions reductions. The Clean Power Plan was challenged by several states and coal industry companies, and stayed by order of the Supreme Court. With the Trump administration, the EPA repealed the Clean Power Plan in favor of the less-aggressive Affordable Clean Power rule in 2019 based on a different interpretation of §7411(d), and the case against the Clean Power Plan rendered moot. Several other states and health and environmental groups challenged this new rule, and the District of Columbia Circuit Court ruled in January 2021 that the Affordable Clean Power rule was arbitrary and capricious and misinterpreted §7411(d), vacating this new rule.

Several of the states that first challenged the Clean Power Plan as well as coal industry-related companies challenged the D.C. Circuit's ruling on their analysis of the §7411(d) and the EPA's authority granted by it, concerned that the Circuit's ruling would give the EPA far broader powers on emissions regulation. West Virginia v. EPA represents a consolidation of four petitions that the Supreme Court certified to review the D.C. Circuit's decision.

The court issued its 6-3 opinion on June 30, 2022, ruling that Congress did not grant the EPA authority to regulate emissions based on generation shifting mechanisms, which would have invalidated the Clean Power Plan.

Background[

Clean Air Act[

Main article: Clean Air Act (United States)

As part of the amended Clean Air Act, under 42 U.S.C. § 7411 (or Section 111 in the proposed bill), Congress granted the Environmental Protection Agency (EPA) authority to identify the "best system of emission reduction" from power generating plants or other large stationary sources, and work with states to complete implementation plans to incorporate those systems. This authority was split between two regulations, one covering emissions controls for new plants, outlined at 42 U.S.C. § 7411(b), and another controlling emissions at existing plants, at 42 U.S.C. § 7411(d). Within the scope of §7411(d), while the EPA itself cannot set taxes or fines on plants that fail to meet emission standards, it can work with states in their implementation plans to force generating plants to install emissions control technology or to participate in emissions trading programs, or allow states to implement their own taxes on violating plants.[1] Compared to the EPA's use of §7411(b) in overseeing new plants, the EPA had rarely evoked §7411(d) in any of its rule-making, and thus §7411(d) realized less legal scrutiny compared to other parts of the Clean Air Act.[1]

Prior EPA litigation[

Further information: United States administrative law and United States environmental law

One key piece of litigation related to the Clean Air Act was the 2007 Supreme Court case Massachusetts v. EPA, which in a 5–4 decision, had found that the EPA was mandated by Congress to regulate greenhouse gas emissions and can be sued for failing to enact rules to this end under the Clean Air Act.[2] Massachusetts v. EPA was considered one of the most significant cases in environmental litigation, as it allowed for a range of further lawsuits aimed to force emission-producing entities to limit their emissions.[3]

Another relevant piece of litigation was the 2015 Supreme Court case Michigan v. EPA, which in a 5–4 decision held that the EPA must consider costs and that it interpreted the Clean Air Act unreasonably when it determined that it did not need to consider costs when it issued a "finding" that it was "necessary and appropriate" to regulate fossil fuel power plants.[4] Michigan v. EPA was considered a controversial case in environmental litigation as it was criticized for minimizing health impacts and signalling a retreat of the Chevron deference, in which the interpretation of congressional legislation made by executive agencies is given deference in judicial court established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., in administrative law.[5][6]

Procedural history[

Clean Power Plan[

Main article: Clean Power Plan

The Clean Power Plan (CPP) was an Obama administration rule first proposed by the United States Environmental Protection Agency (EPA) in June 2014. The rules set by the EPA were aimed to tackle climate change by requiring reductions of carbon dioxide emissions from electricity generation by 32% of recorded 2005 levels by 2030, with the implementation to be set by the states, under the authority granted by the Clean Air Act, §7411(d). States would have been required to submit implementation plans by 2018 with enforcement to start by 2022.[7] States could require existing plants to implement efficiency improvements, emissions controls, or incorporate renewable energy generation; under these rules, existing plants adding these elements could then be subject to a New Source Review by the EPA under §7411(b), thus assuring older plants then were brought up to standards expected of new power plants.[8] This was part of the United States' commitment towards the Paris Agreement, using amendments introduced in 1990 to the Clean Air Act that identified carbon dioxide as a pollutant.[9]

Opponents of the CPP, which included 28 states and hundreds of companies, challenged the EPA's authority in its rulemaking of the CPP, filing suit in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) after the rules were published in the Federal Register in August 2015. Their suit challenged the CPP primarily on three factors. The first related to an oversight during the reconciliation of the Clean Air Act amendment in 1990 that resulted in the House and Senate versions of §7411(d) to never be reconciled, and both versions were codified into the signed law. The House version had stated that because other parts of the Clean Air Act had covered regulation of carbon dioxide, the EPA could not use §7411(d) to cover carbon dioxide emissions from existing plants, while the Senate version allowed for §7411(d) to overlap carbon dioxide emissions coverage.[9] The EPA inferred that they had judicial deference to interpret the law, following the Supreme Court decision in King v. Burwell in 2015, and used the Senate's language to develop the CPP, while opponents believed that the House version was the intended language consistent with other parts of the law.[9]

A second factor raised by opponents of the CPP was that the EPA's rule reached beyond their normal authority by giving states authority to regulate power plants across the board rather than at an individual plant level. Opponents believed that while having the EPA or states could have plants take actions like implementing emissions controls as those were within bounds of the plant's control or "within the fenceline", the rules related to efficiency improvements and renewables were considered to be "outside the fenceline" and beyond the scope of the EPA's authority.[10] The third factor was related to Tenth Amendment arguments that the EPA was inappropriately delegating federal authority to the states.[10]

The D.C. Circuit agreed to hear the case in January 2016, though they did not grant a temporary injunction to stay enforcement of the CPP.[11][12] In February 2016, from request by the states and other opponents of the CPP, the Supreme Court ordered a stay in the implementation of the CPP. While the order was unsigned, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan stated they would have denied the request.[7] The D.C. Circuit held an en banc hearing in September 2016.[11]

Following the 2016 presidential election and the installation of the Trump administration at the start of 2017, the EPA effectively stated its intent to repeal the Clean Power Plan by March 2017 and to replace it with a new rule that was intended to keep its authority "within the fenceline", and asked the D.C. District to put the case in abeyance.[13] The D.C. District court granted the abeyance request in April and granted continued extensions through the year. The EPA formally issued its initially ruling to repeal the CPP in October 2017, and continued to request the D.C. Circuit to hold the case in abeyance until the rulemaking was finalized. Proponents of the CPP urged the District court to press ahead with ruling from the September 2016, since any delay would allow the EPA to avoid its duty to uphold the Clean Air Act.[14] While the D.C. Circuit did continue to grant additional periods of abeyance through June 2018, the court stated that month that it would no longer grant any further requests to delay the case, requiring the EPA to issue its final rule repealing the CPP and introducing a replacement rule, or to allow the court to continue its review.[15]

Affordable Clean Energy rule[

With the D.C. Circuit court refusal to grant further abeyance delays, the EPA issued a new proposed set of emissions regulations, the Affordable Clean Energy (ACE) rule, in August 2018. These repealed the CPP, with the EPA arguing these were developed on a misplaced use of statutory interpretation of §7411(d).[12] The ACE rules were developed based the EPA's responsibility established in Massachusetts v. EPA, but only setting minimal safeguards and requirements for such reductions, targeting only a reduction of between 0.7% and 1.5% of carbon dioxide emissions from 2005 levels by 2030, compared to the 32% set by the CPP. Further, ACE kept the EPA's regulations to only steps "within the fenceline" of a power plant through emissions controls and lacked any allowance towards efficiency improvements or renewable sources. While power plants that implemented emissions controls would still be subject to a New Sources Review, the ACE rule also aimed to weaken the requirements of this review to make it less rigorous and more likely for older plants to pass without having to upgrade their facilities.[16][8] EPA analysis estimated this rule would increase particulate pollution compared to what was proposed under CPP, potentially leading to 1,500–3,600 more premature deaths per year by 2030 and up to 15,000 more new cases of upper respiratory problems, among other human health impacts. The EPA argued that these initial rules were based on a limited interpretation of §7411(d), and that other aspects of the Clean Air Act can be used to address other pollutants to reduce these numbers.[17] With the release of the ACE rule and intent to repeal to the CPP, the D.C. Circuit dismissed the case over the CPP as moot, which subsequently ended the stay on the CPP issued by the Supreme Court.[18]

The new rules were seen as a boon to the states and companies that had opposed the CPP, particularly by President Donald Trump who saw it as a means to support the failing coal industry, but several other states and public health groups criticized the new rules, putting profits of the fossil fuel sector over public health.[17] Opponents also argued that the 32% reduction target in the CPP had already been met by the time the new ACE was introduced, so the ACE represented a reversal of those gains in reducing emissions.[12] After the final rule was published in June 2019,[19] the American Lung Association and the American Public Health Association filed suit in the D.C. District court to challenge the rule in July 2019. The plaintiffs were joined by over 170 other groups, including twenty three states, several cities, and other public health groups over time. The suit argued that through the ACE rule, the EPA was failing to meet its duty to reduce emissions and improve public health under the Clean Air Act, as well as preventing states from using other long-standing measures such as emissions trading as part of their implementation plans. Oral hearings were heard in October 2020.[12]

The D.C. Circuit ruled 2–1 on January 19, 2021, by happenstance the day before the inauguration of Joe Biden as the next U.S. President, in favor of the plaintiffs, vacating the ACE and its repeal of the CPP. The majority opinion ruled that the EPA's ACE rulemaking was made in a arbitrary and capricious mannerintended "to slow the process for reduction of emissions", and that its implementation "hinged on a fundamental misconstruction" of the Clean Air Act's §7411(d).[20][18] Because the prior case against the CPP had been rendered moot and the stay against the CPP dismissed, this decision effectively brought the CPP into enforcement, if the EPA chose to continue with it, or to develop a new rule as remanded by the D.C. District court.[18] However, by mid-2021, the Biden administration suggested it was likely seeking an alternate plan than the CPP for carbon dioxide emissions.[21]

== Supreme Court ==

Nineteen other states, led by West Virginia, and power companies challenged the D.C. Circuit's ruling, asserting that the decision gives the EPA too much power in regulating emissions. The states that joined West Virginia were Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.[22]

Four separate petitions (including two from coal corporations and one from North Dakota) were filed, asking the Court to review not only the D.C. Circuit's decision but the interpretation of what powers the EPA has been given by Congress through the Clean Air Act to apply to existing plants under §7411(d). In the case of West Virginia's petition, there was concern that with the interpretation of §7411(d) made by the D.C. Circuit court, the EPA "can set standards on a regional or even national level, forcing dramatic changes in how and where electricity is produced, as well as transforming any other sector of the economy where stationary sources emit greenhouse gases."[23] In line with the findings from Michigan v. EPA, the petitioning parties expressed concern that under this interpretation of §7411(d) "will impose costs we can never recoup because E.P.A., the state, and others will be forced to sink even more years and resources into an enterprise that is — at best — legally uncertain. The court should intervene now."[24]

The Biden administration urged the Supreme Court not to intervene, allowing the EPA to issue its new rule "taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years", and allow time for it to be reviewed, rather than make judgment on a speculative EPA rule.[23][24] The Supreme Court certified the four petitions on October 29, 2021, consolidating the cases under West Virginia v. EPA. Due to the Supreme Court granting the case for review, the EPA has indicated it will likely wait until the Court's decision has been issued before proceeding with drafting any new rules to replace the CPP or ACE.[25]

Oral arguments were heard on February 28, 2022. Besides other factors raised, the Court considered if aspects of the case fell within themajor question doctrine, which requires the judiciary to defer to Congress rather than executive agencies on matters with significant impacts and outcomes if Congress did not explicitly grant that power to the agency.[26] The Court's decision is expected in 2022.[27][24]

The Court's decision was issued on June 30, 2022, with Chief Justice John Roberts writing the majority opinion joined by the other conservative Justices. Roberts first stated that regardless of standing in challenging the CPP, the case still had remit for review at the Court to evaluate the EPA's rule making decision. Roberts then ruled that the EPA does not have Congressional authority to limit emissions at existing power plants through generation shifting to cleaner sources (beyond the fenceline), but still can regulate emissions at plants by emissions reductions technologies as they have done in the past.[28] Roberts wrote in regards to agencies' ability to interpret congrssional mandates that "certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us 'reluctant to read into ambiguous statutory text' the delegation claimed to be lurking there... To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to 'clear congressional authorization' for the power it claims."[29]

Impact[

Some legal experts have stated that a ruling in West Virginia v. EPA that limits the EPA's power would have a significant impact on the agency's future ability to regulate emissions. Robert Percival, the director of the Environmental Law Program at the University of Maryland, said "This is likely to result in one of the most significant environmental rulings the court has ever reached."[25] Further, because the Supreme Court did not wait until the EPA issued new rules, others felt this signaled that the Court was willing to review Congressional authorization and consider if such authorizations violated the nondelegation doctrine of separation of powers, which would further hamper the EPA's capabilities to regulate emissions.[25] Some legal analysts also believe that the Supreme Court's involvement is needed to resolve long-standing conflicts in §7411(d) and other parts of the Clean Air Act.[30]

References

...

https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/

west Virginia v. Environmental Protection Agency

Consolidated with:

Linked with:

Docket No.Op. BelowArgumentOpinionVoteAuthorTerm
20-1530D.C. Cir.Feb 28, 2022Jun 30, 20226-3RobertsOT 2021

Holding: Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.

Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on June 30, 2022. Justice Gorsuch filed a concurring opinion, in which Justice Alito joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.

SCOTUSblog Coverage

DateProceedings and Orders (key to color coding)
Apr 29 2021Petition for a writ of certiorari filed. (Response due June 3, 2021)
May 26 2021Blanket Consent filed by Petitioner, State of West Virginia, et al.
May 27 2021Motion to extend the time to file a response from June 3, 2021 to July 6, 2021, submitted to The Clerk.
May 28 2021Motion to extend the time to file a response is granted and the time is extended to and including July 6, 2021, for all respondents.
May 28 2021Brief of respondent National Mining Association in support filed.
Jun 02 2021Brief of respondent Basin Electric Power Cooperative in support filed.
Jun 03 2021Brief amicus curiae of Commonwealth of Kentucky filed.
Jun 03 2021Brief of respondent America's Power in support filed.
Jun 25 2021Motion to extend the time to file a response from July 6, 2021 to August 5, 2021, submitted to The Clerk.
Jun 28 2021Motion to extend the time to file a response is granted and the time is further extended to and including August 5, 2021, for all respondents.
Aug 05 2021Brief of respondents Consolidated Edison, Inc., Exelon Corporation, National Grid USA, New York Power Authority, Power Companies Climate Coalition, and Sacramento Municipal Utility District in opposition filed. VIDED.
Aug 05 2021Brief of respondents Non-Governmental Organization and Trade Association Respondents in opposition filed. VIDED.
Aug 05 2021Brief of respondents U.S. Environmental Protection Agency, et al. in opposition filed. VIDED.
Aug 05 2021Brief of respondents States and Municipalities in opposition filed. VIDED.
Aug 24 2021Reply of petitioners State of West Virginia, et al. filed. (Distributed)
Aug 25 2021DISTRIBUTED for Conference of 9/27/2021.
Oct 04 2021DISTRIBUTED for Conference of 10/8/2021.
Oct 12 2021DISTRIBUTED for Conference of 10/15/2021.
Oct 25 2021DISTRIBUTED for Conference of 10/29/2021.
Oct 29 2021Petition GRANTED. The petitions for writs of certiorari in No. 20-1531 and No. 20-1780 are granted. The petition for a writ of certiorari in No. 20-1778 is granted limited to Question 2 presented by the petition. The cases are consolidated, and a total of one hour is allotted for oral argument. The motion of Lignite Energy Council for leave to file a brief as amicus curiae is granted. VIDED.
Nov 04 2021Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 20-1530. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 20-1530. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
Nov 10 2021Blanket Consent filed by petitioners, State of West Virginia, et al. VIDED.
Nov 10 2021Blanket Consent filed by petitioner, North American Coal Corporation in No. 20-1531. VIDED.
Nov 10 2021Blanket Consent filed by petitioner, Westmoreland Minings Holdings LLC in No. 20-1778. VIDED.
Nov 24 2021Blanket Consent filed by respondent, America's Power in support. VIDED.
Nov 24 2021Blanket Consent filed by respondent, National Mining Association in support. VIDED.
Nov 24 2021Blanket Consent filed by respondent, Basin Electric Power Cooperative in support. VIDED.
Nov 24 2021Motion of Non-Governmental Organization and Trade Association Respondents for an extension of time not accepted for filing. (December 03, 2021)
Nov 26 2021Motion of respondents for an extension of time filed. VIDED.
Nov 29 2021Blanket Consent filed by respondent, U.S. Environmental Protection Agency, et al. VIDED.
Nov 29 2021Blanket Consent filed by petitioner, North Dakota in No. 20-1780. VIDED.
Nov 30 2021Blanket Consent filed by respondent, Non-Governmental Organization and Trade Association respondents. VIDED.
Dec 01 2021Motion to extend the time to file the response briefs on the merits is granted and the time is extended to and including January 18, 2022. VIDED.
Dec 06 2021Blanket Consent filed by respondents, States and Municipalities in opposition. VIDED.
Dec 13 2021Joint appendix filed (4 volumes). VIDED. (Statement of costs filed)
Dec 13 2021Brief of petitioners West Virginia, et al. filed (in 20-1530).
Dec 13 2021Brief of petitioner The North American Coal Corporation filed. VIDED.
Dec 13 2021Brief of petitioner Westmoreland Minings Holdings LLC filed. VIDED.
Dec 13 2021Brief of petitioner The State North Dakota filed. VIDED.
Dec 13 2021Brief of respondent National Mining Association in support filed. VIDED.
Dec 13 2021Brief of respondent Basin Electric Power Cooperative in support filed. VIDED.
Dec 13 2021Brief of respondent America's Power filed. VIDED.
Dec 16 2021:{Brief amicus curiae :(style="background-color:#ff6600;"):}:of Landmark Legal Foundation filed. (in 20-1530)
Dec 16 2021Brief amici curiae of Cato Institute, et al. filed. VIDED.
Dec 16 2021Brief amici curiae of Lignite Energy Council, et al. filed. VIDED.
Dec 17 2021ARGUMENT SET FOR Monday, February 28, 2022. VIDED.
Dec 17 2021Brief amicus curiae of Competitive Enterprise Institute filed. VIDED.
Dec 17 2021Brief amici curiae of South Texas Electric Cooperative, Inc., et al. filed. VIDED.
Dec 20 2021Brief amicus curiae of Americans for Prosperity Foundation filed. VIDED.
Dec 20 2021Brief amici curiae of :{Scholars of Congressional Accountability:(style="background-color:#ffff66;"):}: in support of neither party filed. VIDED.
Dec 20 2021Brief amicus curiae of Claremont Institute's Center for Constitutional Jurisprudence filed. VIDED.
Dec 20 2021Brief amici curiae of Southeastern Legal Foundation, et al. filed. VIDED.
Dec 20 2021Brief amicus curiae of Buckeye Institute filed. VIDED.
Dec 20 2021Brief amicus curiae of New England Legal Foundation filed. VIDED.
Dec 20 2021Brief amicus curiae of :{America First Policy Institute :(style="background-color:#ff9900;"):}:filed. VIDED.
Dec 20 2021Brief amici curiae of Michigan House of Representatives, et al. filed. VIDED.
Dec 20 2021Brief amici curiae of 9:{1 Members of Congress:(style="background-color:#ffff66;"):}: filed. VIDED.
Dec 20 2021Brief amici curiae of Kentucky, et al. filed. (in 20-1530)
Dec 20 2021Brief amici curiae of :{Doctors for Disaster Preparedness:(style="background-color:#ff9900;"):}:, et al. filed. (in 20-1530)
Dec 20 2021Brief amicus curiae of:{ New Civil Liberties Alliance:(style="background-color:#ffff66;"):}: (Dec. 30, 2021) filed.
Dec 21 2021Record requested from the U.S.C.A. District of Columbia Circuit.
Dec 23 2021The record from the U.S.C.A. District of Columbia Circuit is electronic and located on Pacer. The oral argument transcript has been electronically filed.
Dec 30 2021Amicus brief of New Civil Liberties Alliance not accepted for filing. (Corrected version submitted)(January 05, 2022)
Jan 18 2022CIRCULATED
Jan 18 2022Brief of Non-Governmental Organization and Trade Association respondents filed. VIDED. (Distributed)
Jan 18 2022Brief of State of New York, and Other State and Municipal respondents filed. VIDED. (Distributed)
Jan 18 2022Brief of Federal respondents filed. VIDED. (Distributed)
Jan 18 2022Brief of Power Company respondents filed. VIDED. (Distributed)
Jan 18 2022Motion for enlargement of time for oral argument and for divided argument filed by West Virginia, et al. VIDED.
Jan 18 2022Motion for enlargement of time for oral argument and for divided argument filed by North Dakota. VIDED.
Jan 18 2022Motion for enlargement of time for oral argument and for divided argument filed by the Solicitor General. VIDED.
Jan 19 2022Letter of respondent Commonwealth of Virginia filed (Revised letter of 2/18/22). VIDED. (Distributed)
Jan 24 2022Motion of West Virginia, et al. for divided argument and for enlargement of time for oral argument granted in part, and the time is allotted as follows: 20 minutes for the state petitioners, 15 minutes for the private petitioners, 20 minutes for the federal respondents, and 15 minutes for the power company respondents. VIDED.
Jan 24 2022Motion of the Solicitor General for divided argument and for enlargement of time for oral argument granted in part, and the time is allotted as follows: 20 minutes for the state petitioners, 15 minutes for the private petitioners, 20 minutes for the federal respondents, and 15 minutes for the power company respondents. VIDED.
Jan 24 2022Motion of North Dakota for divided argument and for enlargement of time for oral argument DENIED. VIDED.
Jan 24 2022:{Brief amici curiae :(style="background-color:#ff6600;"):}:of Climate Scientists Michael Oppenheimer, et al. filed. VIDED. (Distributed)
Jan 24 2022Brief amici curiae of U.S. Senators Sheldon Whitehouse, et al. filed (in 20-1530). (Distributed)
Jan 24 2022Brief amicus curiae of Thomas C. Jorling filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of The National League of Cities and The U.S. Conference of Mayors filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of American Thoracic Society, et al. filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of 192 Members of Congress filed. VIDED. (Distributed)
Jan 25 2022Brief amicus curiae of Public Citizen filed. VIDED. (Distributed)
Jan 25 2022Brief amicus curiae of Richard L. Revesz filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of Former Commissioners of the Federal Energy Regulatory Commission filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of The Edison Electric Institute and The National Association of Clean Water Agencies filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of Apple Inc., et al., filed. VIDED. (Distributed)
Jan 25 2022Brief amicus curiae of Julian Davis Mortenson filed (in 20-1530). (Distributed)
Jan 25 2022Brief amici curiae of Former Power Industry Executives filed. VIDED. (Distributed)
Jan 25 2022Brief amici curiae of Grid Experts Benjamin F. Hobbs, et al. filed (in 20-1530). (Distributed)
Jan 25 2022Brief amicus curiae of National Parks Conservation Association filed. VIDED. (Distributed)
Feb 08 2022Update to Amended Corporate Disclosure Statements in the Power company respondents brief on the merits filed. VIDED. (Distributed)
Feb 16 2022Reply of respondent Basin Electric Power Cooperative filed. VIDED. (Distributed)
Feb 17 2022Reply of petitioner The North American Coal Corporation filed. VIDED. (Distributed)
Feb 17 2022Reply of petitioner Westmoreland Minings Holdings LLC in No. 20-1778 filed. VIDED. (Distributed)
Feb 17 2022Reply of petitioner The State North Dakota in No. 20-1780 filed. VIDED. (Distributed)
Feb 17 2022Reply of petitioners State of West Virginia, et al. filed (in 20-1530). (Distributed)
Feb 28 2022Argued. For state petitioners: Lindsay S. See, Solicitor General, Charleston, W. Va. For private petitioners: Jacob M. Roth, Washington, D. C. For federal respondents: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C. For power company respondents: Beth S. Brinkmann, Washington, D. C. VIDEd

91 GOP MoC

BRIEF OF 91 MEMBERS OF CONGRESS

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

JEFFREY S. BEELAERT

Counsel of Record

STEIN MITCHELL BEATO &

MISSNER LLP

901 Fifteenth St., NW

Suite 700

Washington, D.C. 20005

(202) 737-7777

jbeelaert@steinmitchell.com

Counsel for Amici Curiae

STATEMENT OF INTEREST

Amici are Senators and Representatives duly elected

to serve in the United States Congress, in which the

Constitution vests all legislative powers. As elected

members of Congress, Amici have strong institutional

interests in protecting Congress’s power to enact legislation governing our nation, including laws addressing

greenhouse gas emissions. Amici include:

Senator Shelley Moore Capito of West Virginia

Senate Republican Leader Mitch McConnell of

Kentucky

:{

}:

Representative Cathy McMorris Rodgersof

Washington, 5th Congressional District

Minority Leader Kevin McCarthy of California,

23rd Congressional District

Senator John Barrasso, M.D., of Wyoming

Senator Marsha Blackburn of Tennessee

Senator Roy Blunt of Missouri

Senator John Boozman of Arkansas

Senator Mike Braun of Indiana

Senator Richard Burr of North Carolina

Senator Bill Cassidy, M.D., of Louisiana

Senator John Cornyn of Texas

Senator Tom Cotton of Arkansas

Senator Kevin Cramer of North Dakota

Senator Mike Crapo of Idaho

Senator Ted Cruz of Texas

Senator Steve Daines of Montana

Senator Joni K. Ernst of Iowa

Senator Deb Fischer of Nebraska

Senator Lindsey O. Graham of South Carolina

Senator Bill Hagerty of Tennessee

Senator Josh Hawley of Missouri

Senator John Hoeven of North Dakota

Senator Cindy Hyde-Smith of Mississippi

Senator James M. Inhofe of Oklahoma

Senator Ron Johnson of Wisconsin

Senator John Kennedy of Louisiana

Senator James Lankford of Oklahoma

Senator Mike Lee of Utah

Senator Cynthia M. Lummis of Wyoming

Senator Roger Marshall, M.D., of Kansas

Senator Jerry Moran of Kansas

Senator Lisa Murkowski of Alaska

Senator Rand Paul, M.D., of Kentucky

Senator Rob Portman of Ohio

Senator James E. Risch of Idaho

Senator M. Michael Rounds of South Dakota

Senator Marco Rubio of Florida

Senator Ben Sasse of Nebraska

Senator Rick Scott of Florida

Senator Tim Scott of South Carolina

Senator Richard Shelby of Alabama

Senator Dan Sullivan of Alaska

Senator John Thune of South Dakota

Senator Thom Tillis of North Carolina

Senator Pat Toomey of Pennsylvania

Senator Tommy Tuberville of Alabama

Senator Roger F. Wicker of Mississippi

Senator Todd Young of Indiana

Minority Whip Steve Scalise of Louisiana,

1st Congressional District

Representative Fred Upton of Michigan,

6th Congressional District

Representative Michael C. Burgess of Texas,

26th Congressional District

Representative Robert E. Latta of Ohio,

5th Congressional District

Representative Brett Guthrie of Kentucky,

2nd Congressional District

Representative David B. McKinley of

West Virginia, 1st Congressional District

Representative Adam Kinzinger of Illinois,

16th Congressional District

Representative H. Morgan Griffith of Virginia,

9th Congressional District

Representative Gus M. Bilirakis of Florida,

12th Congressional District

Representative Bill Johnson of Ohio,

6th Congressional District

Representative Billy Long of Missouri,

7th Congressional District

Representative Larry Bucshon of Indiana,

8th Congressional District

Representative Markwayne Mullin of Oklahoma,

2nd Congressional District

Representative Richard Hudson of North Carolina,

8th Congressional District

Representative Tim Walberg of Michigan,

7th Congressional District

Representative Earl L. “Buddy” Carter of Georgia,

1st Congressional District

Representative Jeff Duncan of South Carolina,

3rd Congressional District

Representative Gary J. Palmer of Alabama,

6th Congressional District

Representative Neal P. Dunn of Florida,

2nd Congressional District

Representative John R. Curtis of Utah,

3rd Congressional District

Representative Debbie Lesko of Arizona,

8th Congressional District

Representative Greg Pence of Indiana,

6th Congressional District

Representative Dan Crenshaw of Texas,

2nd Congressional Distric

Representative John Joyce of Pennsylvania,

13th Congressional District

Representative Kelly Armstrong of North Dakota,

At-Large Congressional District

Representative Troy Balderson of Ohio,

12th Congressional District

Representative Cliff Bentz of Oregon,

2nd Congressional District

Representative Lauren Boebert of Colorado,

3rd Congressional District

Representative Tom Emmer of Minnesota,

6th Congressional District

Representative Russ Fulcher of Idaho,

1st Congressional District

Representative Garret Graves of Louisiana,

6th Congressional District

Representative Doug LaMalfa of California,

1st Congressional District

Representative Dan Meuser of Pennsylvania,

9th Congressional District

Representative Mariannette Miller-Meeks of Iowa,

2nd Congressional District

Representative Carol Miller of West Virginia,

3rd Congressional District

Representative Alex Mooney of West Virginia,

2nd Congressional District

Representative Dan Newhouse of Washington,

4th Congressional District

Representative Ralph Norman of South Carolina,

5th Congressional Distric

...

Representative Jay Obernolte of California,

8th Congressional District

Representative August Pfluger of Texas,

11th Congressional District

Representative Guy Reschenthaler of

Pennsylvania, 14th Congressional District

Representative Bruce Westerman of Arkansas,

4th Congressional District

doc disaster prep

ANDREW L. SCHLAFLY 939 Old Chester Road Far Hills, NJ 07931 (908) 719-8608 aschlafly@aol.com Counsel for Amici Curiae

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

RICHARD P. HUTCHISON

LANDMARK LEGAL FOUNDATION

3100 Broadway

Suite 1210

Kansas City, MO 64111

816-931-5559

MICHAEL J. O’NEILL

Counsel of Record

MATTHEW C. FORYS

LANDMARK LEGAL FOUNDATION

19415 Deerfield Ave.

Suite 312

Leesburg, VA 20176

703-554-6100

703-554-6119 (Facsimile)

mike@landmarklegal.org

Attorneys for Amicus Curiae

BRIEF OF THECATO INSTITUTE AND

MOUNTAIN STATES LEGAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Joseph A. Bingham

MOUNTAIN STATES

LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80237

(303) 292-2021

jbingham@mslegal.org

December 16, 2021

Ilya Shapiro

Counsel of Record

William Yeatman*

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar

under D.C. App. R. 46-A.

Supervised by a D.C. Bar

member.

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE IN

SUPPORT OF PETITIONERS

December 20, 2021

Philip Hamburger

Mark Chenoweth

Brian Rosner

(Counsel of Record)

Richard Samp

New Civil Liberties Alliance

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Brian.Rosner@NCLA.legal

Counsel for Amicus Curiae

AFP KOCH

Michael Pepson Counsel of Record AMERICANS FOR PROSPERITY FOUNDATION 1310 N. Courthouse Road, Ste. 700 Arlington, VA 22201 (571) 329-4529 mpepson@afphq.org

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE’S CENTER FOR CONSTITUTIONAL JURISPRUDENCE IN SUPPORT OF PETITIONERS

JOHN C. EASTMANANTHONY T. CASO Counsel of Record CONSTITUTIONAL COUNSEL GROUP 174 W. Lincoln Ave., #620 Anaheim, CA 92805 (916) 601-1916 atcaso@ccg1776.com