Slate Op-Ed: Supreme Court Climate Skeptics Will Help Decide the Fate of the Planet

Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act. Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case -- West Virginia v. EPA. Once again, it was a split-screen reality.

Employers prefer to deal with their workers one on one. But workers have shown throughout history they will not abide by this unfair practice. They organize, they work together, and, when their employers refuse to deal with them all at once, they strike. Workers engaged in, and prospered from, collective action long before passage of the National Labor Relations Act. The law merely sought to regulate this action for the public good, to replace strike with negotiation, conflict with cooperation. History is now repeating itself; labor strife is increasing, thanks in part to the rise of legal contracts that force workers to settle disputes in a rigged system of arbitration rather than an impartial court of law.

Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system -- even though the price tag is higher -- because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere -- a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet. Policymakers go through a similar -- though much more complex -- process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health. Despite its name, a true analysis of a rule's full benefits is impossible.

The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.

After the Supreme Court's decision last month rejecting the Biden vaccine mandate for large employers, it wasn't just the public health community that was asking "where do we go from here?" Environmental activists and attorneys immediately recognized that the Court's reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.

In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump. Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis. Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).

In this post, we take a look at the Environmental Justice for All Act, legislation originally introduced in 2021 that would strengthen environmental standards and create safer and healthier communities for all, regardless of race, ethnicity, or income. A recent Congressional committee hearing on the act might finally be moving the legislation forward.

In a fair and just country, corporations are held accountable in the courts if their irresponsible behavior harms people. However, like many policies, the communities most impacted by forced arbitration are historically marginalized groups. Indeed, forced arbitration has a disproportionate impact on low-income Americans and Black and brown women when they are the victims of discrimination. Their abuse goes beyond the general adverse impacts of forced arbitration, noted in a new report by the Center for Progressive Reform.

On Jan. 25, the U.S. Court of Appeals for the Fourth Circuit held oral argument in Baltimore v. BP PLC, a case in which the city is seeking to hold BP and other fossil fuel companies liable in state court for their systematic deceptive marketing campaign to hide the catastrophic dangers of their products. The goal of their decades-long, ongoing disinformation campaign: to lock in a fossil-fuel based society—and continue reaping astronomical profits—even during a fossil fuel-driven climate emergency. Other cities, counties, and states have brought similar suits in their state courts, all invoking long-standing state deceptive marketing laws. So why is Baltimore's case before a federal appellate court? The panel's three judges wanted to know—and the answer is more misrepresentation.