JUDICIAL

The Judicial Branch of the federal government is responsible for interpreting and reviewing the country’s laws. The Supreme Court is the most powerful body of the Judicial Branch. About 8,000 cases are filed with the Supreme Court each year, but only about 80 are chosen to be heard and decided by the Court. The Supreme Court is the only court where the Justices make the decision whether or not to hear a case. Most often, a case makes it to the Supreme Court after the plaintiffs involved appeal the ruling of one of the US Courts of Appeal.

There are numerous cases weaving their way through the courts. Exxon Mobil, for example, is facing a wave of lawsuits driven in large part by revelations which began surfacing in 2015.  These revelations indicated that the climate crisis was not the result of blind error, or even willful ignorance, but rather calculated abuses of power.  Exxon had conducted scientific studies that showed the warming effect of carbon emissions and predicted the dire consequences of climate change, before spending millions on misinformation to derail regulation and solidify international dependence on fossil fuels. Massachusetts and New York have both sued Exxon for fraud.

Meanwhile, cities like San Francisco, New York City, Richmond and others have filed suits for damages from climate change against companies like Chevron, BP, Shell, and ConocoPhillips in addition to Exxon. Several high-profile cases challenging the expansion of oil pipelines are also being litigated.

And, then there is the landmark case of Juliana v. US, brought by 21 young people in 2015, which argues that the federal government’s duty to serve as a trustee of resources extends to the atmosphere, and that it had thus failed in that constitutional duty. A full and fascinating history of this litigation can be found here.

Just as many of these cases are winding their way through the courts, the makeup of the highest court in the land has changed dramatically. Following the death of renowned Justice Ruth Bader Ginsburg on September 18, 2020, Trump filled her seat with Amy Coney Barrett on September 26th. Barrett’s appointment promised to shift the court to the far right for decades to come and we can see in the most recent case, the Supreme Court ruled in the case of West Virginia vs the Environmental Protection Agency. The case involved a challenge by several states and coal companies against the EPA over its ability to regulate power plant emissions by “generation shifting” – that is, requiring plants to actually change the method of how they produce power, such as moving from coal to natural gas or solar. The Supreme Court opted to decide on the matter, despite the fact that the EPA hadn’t actually produced any rules yet. under the Clean Air Act were not so expansive as to include generation shifting, finding that the agency would need explicit authorization from Congress in order to hold that power. “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Chief Justice John Roberts wrote in the majority opinion. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme."

In a dissenting opinion joined by Justices Breyer and Sotomayor, Elena Kagan wrote that the Court’s opinion amounted to legislation, arguing that Congress had delegated the power to curb air pollution–including carbon emissions–to the EPA, and that it would be the proper purview of Congress to limit the agency’s authority if it disagreed with its policies. “[T]he Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions,” Kagan wrote. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”