As Greg Sargent points out, the damage Trump has done through the courts will be with us for decades, if not the rest of our lifetimes, and we have to face the very real possibility that the Roberts Court will destroy the remaining paths to fixing climate change and doom all of us, no matter who wins in 2020, according to a new study.
Imagine that a Democratic president and Congress were to enact some sort of Green New Deal-oriented program that includes extensive investments in green energy technologies, and new regulations on greenhouse gas emissions by both industry and the agricultural sector.
Such efforts would be implemented by agencies such as the Environmental Protection Agency and the Agriculture Department. No matter how clearly the statutory commands to these agencies are written, the study argues, “a determined Court can undermine attempts to realize the legislation by reading agencies’ statutory authority extremely narrowly.”
The study posits that the conservative justices could invalidate climate legislation through a creative reading of the Fifth Amendment’s prohibition against taking private property for “public use” without “just compensation.”
For instance, the study notes, the court might narrowly construe what counts as a “public purpose,” as previous conservative justices have suggested in dissents. In this scenario, the court might strike down legislation dramatically restricting oil drilling as an unconstitutional “taking” from a corporation engaged in it.
“Though oil companies arguably are implicated in wreaking affirmative harm on society,” the study concludes, the court might simply deny that the policy in question would actually serve a public purpose. How? By concluding that it “would not remedy the affirmative harm that climate change poses to society,” or worse, that “climate change does not pose a sufficient harm in the first place.”
Another possibility is that the conservative justices might be animated by a newly emerging doctrine called “regulatory takings.” This doctrine reads not just eminent domain but also certain regulatory acts as “takings” requiring compensation.
Imagine a law that requires new levels of monitoring on fossil-fuel drilling sites to keep extractions below a certain threshold. The study posits that the justices might allow that the regulation does serve a public purpose, so it can stand, but also that it’s still a “taking” and thus requires compensation.
“Requiring the government to pay to regulate could pose problems for the fiscal feasibility of climate change legislation,” the study concludes.
Other possibilities suggested by the study: Congress’s authority to regulate interstate commerce underpins many environmental laws, but the conservative court could invalidate, say, new regulations affecting natural resources by arguing that the commerce clause does not authorize intrusions into regulatory authority typically reserved to the states.
Or the conservative court could invalidate, for instance, new regulatory standards created for states by concluding that the mechanism to do so runs afoul of an “anti-commandeering doctrine” developed by conservatives to limit the federal government’s ability to exert influence over state governments.
The bottom line subtext of the study: In response to the climate crisis, the federal government is going to have to exercise its powers to a much greater degree — and a major collision between this and the conservative court majority is inevitable.
Once again, you can thank the third party purity scolds, the misogynists, and the "LOL Trump would be a funny president!" idiots for this. The damage is already done, and putting the ideas of Medicaid for All and a Green New Deal out there to be crushed by the courts will just be a recipe for more disaster, and more Trump.
We're in triage mode now. Survival is all that matters.
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