In the same week that the world’s scientists declared global climate disruption has reached a “point of no return”, the Supreme Court, Brett Kavanaugh, and the Trump administration all agreed to do nothing about it.
On Monday, the United Nations’ Intergovernmental Panel on Climate Change (IPCC) released a special report describing the effects of climate change that are already being felt today, and the disastrous effects that could come as soon as 2040 absent dramatic action. Then on Tuesday, the Supreme Court, at the request of the Trump administration, dismissed an appeal of a D.C. Circuit decision that prevented the EPA from regulating a powerful greenhouse gas.
The author of that decision: Judge Kavanaugh.
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For anyone waiting for the impact now-Justice Kavanaugh will have on the Supreme Court, you need wait no longer. While Kavanaugh was not involved in the decision to dismiss this case, it is his opinion is now the law of the land — and is it a disaster for the environment.
David Doniger, who had argued the case for the Natural Resources Defense Council, said in a statement that “Coming only a day after the world’s leading climate scientists called for urgent action to curb dangerous carbon pollution, the court’s decision lets irresponsible companies continue harming our planet.”
The regulation in question dates back to the good old days when the EPA accepted the global consensus of climate scientists that manmade gas emissions are causing the earth’s atmosphere to trap more heat – a phenomenon that, among other things, enabled life on earth to develop 2.5 billion years ago, but which is now causing the Earth’s climate to warm at a breakneck pace unlike anything in the history of the planet.
Among the gases doing the most damage are hydrofluorocarbons. While HFCs are helpful in preventing ozone loss (they replaced chlorofluorocarbons, which cause it), they are nasty greenhouse gases – nicknamed “super-pollutants” because each molecule causes around 14,000 times as much warming as a CO2 molecule. And they are ubiquitous, found in millions of household products from air conditioners to hairspray.
So, in 2015, the EPA effectively banned companies from using HFC in their products when alternatives were available. A consortium of industries sued – although since the leading HFC alternative is manufactured by Honeywell, Inc., it sided with environmentalists.
In August, 2017, the D.C. Circuit court struck down the regulation, in a 2-1 opinion written by Kavanaugh. The court held that while the relevant provision of the Clean Air Act gave the EPA authority to ban ozone-depleting chemicals, it could not ban the replacements for those chemicals, such as HFCs.
That suited the Trump-era EPA just fine; they were planning to roll back the HFC regulations, part of Obama’s Climate Action Plan, anyway. And so while Honeywell and environmental groups appealed the decision to the Supreme Court, the EPA filed a memo arguing that since they weren’t going to regulate HFCs anyway, there would be no point in the Court taking the case.
The Court agreed today – which makes sense, really. There would be little point going through the effort of a Supreme Court briefing, argument, and decision process if, at the end of the day, the regulation is doomed anyway. So they dismissed the case.
The larger contexts, of course, are Kavanaugh and climate change.
Kavanaugh’s opinion in Mexichem Fluor vs. EPA is the perfect example of his view that agencies may not act without specific statutory authority.
That sounds like a neutral principle, but in practice, it would spell the end for a huge swath of environmental, health, safety, labor, financial, commercial, and other regulations. Congress has neither the time nor the expertise to specify every consequence of every law it passes. That’s why it delegates that level of decision-making to agencies, who have teams of experts (until the Trump administration, anyway) to work out the details.
In the case of HFCs, the EPA noted that it had the authority to replace ozone-depleting chemicals with “safe substitutes.” HFCs, it said, are unsafe, because they are climate change super-pollutants. But Judge Kavanaugh called this a “novel reading” of the statute and struck down the regulations.
Of course, one person’s “novel reading” could be another person’s reasonable reading of a broadly-written law by the agency placed in charge of implementing it in the context of evolving scientific understanding. It’s a matter of interpretation.
Which is the point. Together with Justice Gorsuch, who has a similarly restrictive view of agency discretion, Justice Kavanaugh represents the judicial arm of Trump’s goal of “deconstruction the administrative state,” in the words of Steve Bannon.
Oddly enough, when the administrative state imposes conservative positions on the country – when it exempts ‘religious’ corporations from Obamacare, when it allows publicly funded adoption agencies to discriminate against gay people, when it funnels money to religious schools – the defenders of the separation of powers fall silent.
Indeed, the Trump administration just released a coal plan that the government itself said would kill over a thousand people a year. Yet no conservative pundit has argued that exceeds federal authority.
But when it comes to climate change, suddenly the administrative state must be placed on a tight leash.
The irony, of course, is that the Supreme Court’s dismissal of this appeal came one day after the IPCC’s terrifying report, which was a clarion call for collective action to limit global warming to 1.5°C above 1990 levels, rather than allow it to increase by 2°C.
“For instance,” the IPCC’s summary of the report said, “by 2100, global sea level rise would be 10 cm lower with global warming of 1.5°C compared with 2°C. The likelihood of an Arctic Ocean free of sea ice in summer would be once per century with global warming of 1.5°C, compared with at least once per decade with 2°C. Coral reefs would decline by 70-90 percent with global warming of 1.5°C, whereas virtually all (> 99 percent) would be lost with 2ºC.”
Consider that example for a moment. Even if the world bands together and limits temperature rise to 1.5°C, three-quarters of the world’s coral reefs will be destroyed. If we do nothing, virtually all will be destroyed.
And the 1.5°C target would require massive effort, IPCC said, including net zero CO2 emissions by 2050.
“Limiting warming to 1.5ºC is possible within the laws of chemistry and physics but doing so would require unprecedented changes,” said the IPCC’s Jim Skea.
Yet the Republican party, which now controls all three branches of the federal government despite representing a minority of the country’s population, has been totally captured by the fossil fuel industry, which has created a world of fake science – created, incidentally, by the same company that once peddled fake science for the tobacco industry. For a Republican even to question this heresy is now grounds for condemnation.
Which means that we’re likely to see many more coincidences like this: terrifying environmental news, and total failure to do anything about it.
