Jul 3, 2024

The Trump Supreme Court’s War on the Environment

Salvage logging operation in the Sierra National Forest on the border of Yosemite National Park. Photo: Jeffrey St. Clair.

Shortly after the 2016 election, presidential advisor Stephen Bannon, who will be in prison as you read this, vowed to pursue the “deconstruction of the administrative state.”  The combination of Donald J. Trump’s return to the White House and Trump’s three reactionary appointments to the Supreme Court in his first term will fulfill Bannon’s vow.  They will ensure fundamental damage to the environment.

Just last month, Justices Brett Kavanaugh, Neil Gorsuch, and Amy Barrett secured victories for climate deniers everywhere with decisions that weakened the regulatory powers of federal agencies and reversed important decisions at the Environment Protection Agency (EPA).  Gorsuch’s mother, Anne Gorsuch Burford, was a failed EPA administrator for Ronald Reagan, so once again the acorn doesn’t fall far from the tree.

The Court’s key decision was the reversal of the Chevron decision in 1984, dealing a critical blow to four decades of science-based judicial policy.  Chevron gave federal agencies the flexibility to determine how to implement Congressional legislation.  In reversing Chevron, the Supreme Court gave courts and judges the commanding decisions regarding such legislation.  The Chevron decision, also know as the Chevron deferral, enabled the government to defend regulations that protected the environment, financial markets, consumers, and the workplace.  Thousands of judicial decisions that have been made over the past 40 years are now at risk from the current Supreme Court, the most reactionary court in U.S. history.

In explaining the decisions regarding regulatory powers, Chief Justice John Roberts, the most reactionary chief justice since Roger Taney, argued that “agencies have no special competence in resolving statutory ambiguities.  Courts do.” It should be noted that justices and judges have no special competence in technical and scientific matters.  The regulatory agencies do.  It is up to Congress to introduce legislation to protect the ability of the U.S. government to conduct policy as well as the ability of regulatory agencies to carry out such policy.

Trump’s court has damaged the EPA’s authority to limit pollution in the air and water, regulate the use of toxic chemicals, and reduce the greenhouse gasses that are heating the planet.  No agency in government has suffered more damage from Trump and his appointees than EPA.  In addition to the Chevron decision, last week the Supreme Court said that the EPA could no longer limit smokestack pollution that blows across state borders under a measure known as the “good neighbor rule.”  In making this decision, the Court preempted litigation that was pending at the U.S. Court of Appeals for the District of Columbia.

Last year, the court struck down a proposed EPA rule that was designed to protect millions of acres of wetlands from pollution even before the regulation had been made final.  Similarly, the court limited EPA’s ability to regulate greenhouse gas emissions form power plants even before the ruling had taken effect.  Typically, the Supreme Court is the last venue to hear a case, after opinions have been made by lower courts, but this is not so in Roberts’ aggressive court.

“Science Denialism” could have been the bumper sticker for Trump’s first term, which  was marked by his anti-intellectualism and hostility to science itself.  Trump’s vice president, Mike Pence, denied evolution as a concept.  Trump and Pence supported the notion that vaccines cause autism.  Recent outbreaks of mumps and measles in the United States have been linked to those Americans who are choosing to withhold all vaccines from their children.

Trump’s war on science began at the start of his first term, with the appointment of climate change deniers to key cabinet posts where they could do the most damage.  Rex Tillerson, who spent his entire professional career at ExxonMobile, became the secretary of state.  ExxonMobile is well known in the industry for covering up scientific data on climate change, including a lobbying effort denying the fact of man-made global warming.  As Exxon’s CEO, Tillerson argued that humans had no impact on climate change and that, even if they did, nothing could be done about it.

Scott Pruitt took over EPA; Ryan Zinke became the head of the Department of the Interior; and Rick Perry was given the Department of Energy.  Pruitt had a well-established reputation for opposing environmental legislation; he had sued the EPA to reverse numerous regulations.  In his short stewardship at EPA, more than 1,800 scientists and technicians resigned.  President Joe Biden’s appointee to EPA, Michael Regan, has had to rebuild and revive the agency.

Perry had established his ignorance of most energy issues while serving as governor of Texas.  In his confirmation hearings, he confessed ignorance to the fact that the central task of his department was managing nuclear energy  and nuclear weaponry, not the extraction of oil and gas.  In Trump’s group of environmental troglodytes, only Perry remained in the Cabinet at the end of Trump’s second year in office.  As bad as these appointments were, a second term for Trump would presumably find far worse managers of the key departments and agencies related to the environment and the climate.  This will mark a victory for libertarians everywhere, particularly the Heritage Foundation and its Project 2025 agenda to reshape the federal government in order to conform to Bannon’s “destruction of the administrative state.”

Trump’s three reactionary appointments to the Supreme Court in his first term has already identified his legacy.  The weakening of the regulatory agencies will similarly identify the legacy of Chief Justice John Roberts.  Together, Trump and Roberts have subjected science itself to politicization, distortion, and disinformation.  Policies that should be based on the best scientific evidence will be subjected to the ideological preferences of unelected judges, who were appointed by a president who failed to obtain a popular majority.  (A similar scenario could be drawn for George W. Bush, who failed to gain a popular majority in 2001 and nominated Roberts to be Chief Justice and appointed Samuel Alito in 2005.  And we can thank Bush Junior’s dad for Clarence Thomas.)

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