Environmental Anxiety vs. the Constitution

By Noah Rothman

Monday, June 20, 2022

 

New York Times reporter Coral Davenport has uncovered the existence of the Constitution’s first article, and she appears to be scandalized by it.

 

In her latest dispatch, which highlights the “Republican drive to tilt courts against climate action,” Davenport chronicles the efforts of conservative lawyers and right-leaning elected officials to test the legality of climate-related regulations. Their intention is to rein in the bureaucracy—“what they call the administrative state,” the reporter writes of the plaintiffs in one such case—where the bureaucracy is acting in ways that are not authorized by Congress.

 

“But Congress has barely addressed the issue of climate change,” Davenport remarked. For decades, Congress has “delegated authority” to the executive branch and its “specialists,” who can “respond quickly to changing science, particularly when Capitol Hill is gridlocked.” In one case that receives particular attention in Davenport’s article, the Courts have been asked to decide whether the Environmental Protection Agency can assume for itself the authority to shut down an entire sector of the power-generation industry. Conservatives think the answer is no.

 

Indeed, conservative legal activists could not have made a plainer case against the administrative state’s overreach than this. The legislature’s lethargy on climate change or any other exigency does not give the executive branch license to usurp its authority. Davenport’s use of “delegate” in this context also ballasts the right’s argument against bureaucratic bloat because Congress is obliged to be a jealous steward of its authority—whether the institution’s members like it or not.

 

The “nondelegation doctrine” and the havoc it could produce if it were applied to environmental regulations is what keeps Supreme Court experts “up at night,” according to UC Berkley Law Professor Dan Farber. Though it is rarely applied, this doctrine recently made an appearance in Justice Neil Gorsuch’s January concurrence to a ruling striking down the administration’s vaccination and testing mandates for large businesses.

 

Nor is the right’s campaign particularly new. Environmental regulations that do not enjoy congressional authorization and that impose an unfair cost burden on private industry have been on thin ice for years. In 2012, the Supreme Court struck down an EPA rule that would have compelled power-generating firms to absorb hundreds of millions of dollars in new costs. In 2014, the courts took a dim view of regulatory efforts to ban the use of lead in bullets and fishing tackle, which would have made both far more expensive (some have speculated that this, not environmental preservation, was the point of that particular regulation). In 2015, the EPA lost again after it sought to expand its jurisdiction over “navigable waterways” to include minor tributaries to those waterways, effectively making the agency the final arbiter over what can and cannot be built on ground that is or may one day become wet.

 

Davenport’s attempt to demonize the right’s effort to drag Congress back into the process of legislating isn’t especially subtle. The conservative legal movement challenging climate-related rules is characterized by its “aggressive nature.” One progressive activist called the banality of right-wing lawyers arguing before Republican-appointed judges a “pincer move.” And worst of all, these conservatives probably voted for Donald Trump. After all, the “plaintiffs are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges.” Much of the remainder of the article is devoted to informing readers of the nexus between conservative legal organizations, such as the Federalist Society, and the judges they quite openly promote.

 

There is nothing remarkable about any of this, save the breathlessness with which it has been reported in the Times. The flimsiness of the case for these sweeping and burdensome regulations is made plain by Davenport’s failure to include arguments in favor of their constitutionality as much as their necessity. The reporter closes her piece by warning that the courts have their sites set on two critical powers assumed by the administrative state. The judiciary is set to rule on the legality of the way the federal government calculates the “real-life cost” of climate change and a regulation that limits tailpipe emissions, which is “designed to cut auto pollution by compelling automakers to sell more electric vehicles.” The legality of these regulations and the burdens they impose on private interests is assumed.

 

If the courts block the administration’s climate cost metrics, Davenport concludes, “they could strip the federal government of its legal defense for almost any future climate policy.” Not if those regulations were authorized by Congress, of course. But Congress cannot be trusted to act with the alacrity and objectives this reporter prefers. The law’s general indifference to Times’ readers’ emotional states might be the cruelest injustice of them all.