Republican drive to tilt courts against climate action reaches a crucial moment
By Coral Davenport
Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants — pollution that is dangerously heating the planet.
But it is only a start.
The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming.
Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases.
The plaintiffs want to hem in what they call the administrative state, the EPA and other federal agencies that set rules and regulations that affect the U.S. economy. That should be the role of Congress, which is more accountable to voters, said Louisiana Attorney General Jeff Landry, a leader of the Republican group bringing the lawsuits.
But Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked.
West Virginia v. EPA is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the same donors behind efforts to nominate and confirm five of the Republicans on the bench — John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
“It’s a pincer move,” said Lisa Graves, executive director of progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they hand-picked.”
The pattern is repeated in other climate cases filed by the Republican attorneys general and now advancing through the lower courts: The plaintiffs are supported by the same network of conservative donors who helped former President Donald Trump place more than 200 federal judges, many in position to rule on the climate cases in the coming year.
At least two of the cases feature an unusual approach that demonstrates the aggressive nature of the legal campaign. In those suits, the plaintiffs are challenging regulations or policies that don’t yet exist. They want to preempt efforts by President Joe Biden to deliver on his promise to pivot the country away from fossil fuels, while at the same time aiming to prevent a future president from trying anything similar.
The stakes for climate
Victory for the plaintiffs in these cases would mean the federal government could not dramatically restrict tailpipe emissions because of vehicles’ effect on climate nor force electric utilities to replace fossil fuel-fired power plants. And the executive branch could not consider the economic costs of climate change when evaluating whether to approve a new oil pipeline or similar project or environmental rule.
Those limitations on climate action in the United States would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age. That is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases.
The ultimate goal of the Republican activists, people involved in the effort say, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.
Known as the “Chevron deference,” after a 1984 Supreme Court ruling, that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters.
The Chevron deference has long been a target of conservatives, according to Michael McKenna, a Republican energy lobbyist who worked in the Trump White House. “The originalist crew has been steadily moving toward significantly rewriting Chevron for years,” he wrote in an email. “They are about to be rewarded with a substantial and material victory.”
Filling the bench
The roots of that victory were planted in 2015, when Mitch McConnell, R-Ky., became the Senate majority leader and led his party in a sustained campaign to deny President Barack Obama the opportunity to appoint federal judges.
He refused to confirm nominees, waiting for a Republican administration to fill the courts with judges who shared his belief in minimal government regulation. McConnell’s effort ensured that Trump inherited not just an open Supreme Court seat but 107 additional judicial vacancies.
In stepped Leonard Leo, then executive vice president of the Federalist Society, the conservative legal group that helped secure the appointments of Roberts and Alito to the Supreme Court.
Some of the many donors to the Federalist Society include Koch Industries, which has fought climate action; and Chevron, the oil giant and plaintiff in the case that created the Chevron deference.
Leo worked with Don McGahn, Trump’s White House counsel and another longtime Federalist Society member, to vet and recommend judicial candidates to the president.
Trump appointed three Supreme Court justices, 54 appeals court judges and 174 district court judges. By comparison, Biden has, to date, appointed 68 federal judges.
In 2020, Leo stepped down as head of the Federalist Society to run CRC Advisors, a right-wing political strategy firm. In that role, he has operated at the center of a constellation of advocacy groups and undisclosed donors that share a similar goal: Use the courts to advance conservative and libertarian causes.
One of CRC Advisors’ biggest clients is the Republican Attorneys General Association. Another is the Concord Fund, the advocacy group that is the latest incarnation of the Judicial Crisis Network. The fund is also the largest financial backer, by far, of the Republican Attorneys General Association.
Since 2014, the Judicial Crisis Network, now the Concord Fund, has poured more than $17 million into the campaigns of the Republican attorneys general. In the current electoral cycle, the Concord Fund has contributed $3.5 million, several times more than the next biggest donor, the U.S. Chamber of Commerce with $800,000.
Leo and McGahn did not respond to requests for interviews. McConnell declined an interview request.
Neomi Rao, 49, is typical of the judges given lifetime appointments by Trump with support from Leo and his network. Following discussions with McGahn, Rao was nominated in 2018 to replace Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit after he was elevated to the Supreme Court.
The D.C. Circuit Court hears challenges to federal environmental, health and safety regulations.
Rao had never served as a judge and had never tried a case. But she had impeccable conservative credentials and a dislike of government regulation.
In 2017, she was tapped by Trump to run the White House Office of Information and Regulatory Affairs. From that perch, she oversaw an aggressive regulatory rollback, including the weakening or elimination of more than 100 environmental rules.
A new legal approach
Of the 27 Republican attorneys general, a core group from fossil fuel states is leading the coordinated legal challenges: Patrick Morrisey of West Virginia, Daniel Cameron of Kentucky, Todd Rokita of Indiana, Ken Paxton of Texas and Landry from Louisiana.
Lined up behind the West Virginia power plant suit is another case in the D.C. Circuit Court brought by 15 attorneys general challenging a 2021 federal rule designed to cut auto pollution by compelling automakers to sell more electric vehicles.
Should that challenge succeed, more than a dozen Democratic-governed states are expected to impose tougher state-level auto pollution standards. But the Republican attorneys general have already filed a suit in the D.C. Circuit court seeking to block states’ authority to do that.
While no single case is aimed at overturning Chevron, a string of victories would essentially hollow it out.
Sally Katzen, co-director of the Legislative and Regulatory Process Clinic at New York University School of Law, said that a Supreme Court victory this month for the Republican attorneys general and their allies would just be a taste of what’s to come.
“The Federalist Society has put a lot of time and energy into this and a lot of intellectual power,” said Katzen, former head of the White House office of regulatory affairs in the Clinton administration. “All that effort has paid off. But I don’t think this is the culmination of their agenda. I think it’s just the beginning.”