SCOTUS: Equal Protection Under the Law?

Two recent Supreme Court decisions promise to be a disaster for our environment. Many consider the current Supreme Court to be an “activist” court which implies that the justices are making policy rather than ensuring equal justice for all and interpreting the constitution. But haven’t there been times when an “activist” court has arguably helped ensure equal justice for American citizens when the executive and legislative branches were unable to do so? Roe v. Wade protected abortion rights and Obergefell vs. Hodges legalized same-sex marriage. So, how do current activist decisions differ from Roe and Oberfell? 

First, it’s helpful to look at the definition of the Supreme Court’s authority. The SCOTUS website says it “is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” On the contrary, these two decisions completely abandon equality and justice in favor of more pollution, more warming, and more power reserved for the U.S. courts. 

So how bad are the recent decisions? Let’s just say the consequences are shittier than living downstream from an industrial hog farm. 

In Ohio vs. EPA, the Supreme Court eliminated the “good neighbor” rule under the Clean Water Act designed to protect “downwind” states from ozone pollution created by “upwind” states. Ozone pollution is created by large energy and industrial operations. Justice Gorsuch, writing for the majority, acknowledged that eliminating the good neighbor provision would result in increased pollution for downwind states, but upheld the ban since the EPA’s good neighbor interferes with the states’ interests “in regulating their own interests and citizens.” What are the Vegas odds on any politician in an “upwind” state (the state doing the polluting but not affected by the pollution) fighting for regulations to curb the pollution in a downwind state while taking campaign contributions from energy and industrial giants? 1,000,000:1? More?

This decision is important not just because of what it says about the good neighbor rule, but because it eliminates compliance with the EPA’s rules while any matter is being litigated, which allows large industries to continue polluting while litigation lingers in the court system. The rationale for not requiring any compliance, according to Justice Gorsuch, was that if the industries had to comply with the requirements, it would cost the polluters “hundreds of millions, if not billions of dollars.” But what is the cost of not complying with the regulations? According to the EPA, with this single provision, it’s estimated that it could allow an additional 70,000 tons of dangerously polluting nitrous oxide to the atmosphere in a single season and cause up to 1,300 premature deaths. This essentially allows industry to pollute with abandon while waiting for the litigants to ride the wagon wheels of justice along the long, slow, winding pathways of the justice system, one pre-trial conference, one hearing, one appeal at a time. If the courts finally agreed that the company shouldn’t pollute, then and only then, would they have to start complying with the law. Litigation promises to be cheaper than compliance with the laws and meanwhile, the Earth and its inhabitants pay the price. Not sure how any interpretation of equal protection under the law applies to the Ohio decision. 

If that wasn’t fishy enough, the Supreme Court took a case questioning who should pay for observers on commercial fishing vessels in Loper Bright Enterprises vs. Raimondo, and expanded its ruling to every federal and state agency. In this decision, the court overturned the Chevron doctrine—a precedent that has worked well for forty years. Under Chevron, when there is uncertainty in a law enacted by Congress, the courts are required to apply any reasonable interpretations made by the agency charged with implementing and enforcing the law as if that was how the law was written. For example, if there is ambiguity about a provision of the Clean Water Act, enforced by the EPA, the court would apply the EPA’s reasonable interpretation of the ambiguity as how the law was intended to be written in any litigation. The Chevron Doctrine recognized two important principles: 1)  laws are often written with intentional ambiguity since it’s impossible to legislate every detail of enacting a law and/or foresee how to best implement a law and 2) since lawmakers are neither experts nor scientists, it makes sense that the agency or department charged with implementing and enforcing a law will be the best entity to interpret how best to carry out the spirit and intention of the law. Instead of ruling on this single case, in a stunning power grab, the Supreme Court rejected the Chevron Doctrine entirely and appointed themselves (and the lower courts) as the sole interpreters of ambiguities in the laws. Here’s their logic: legislators are elected by the people, but the governmental agencies (like the EPA) are NOT elected by the people and therefore shouldn’t be able to interpret anything and therefore the courts should interpret ambiguities. This argument ignores that the agencies are accountable to the American people by way of the executive and legislative branch politicians who hire and fire the heads of such agencies and direct funds to or from said agency while the SCOTUS justices are appointed for life without any accountability whatsoever. 

In her scathing dissent, Justice Kagan writes, “Today, the Court flips the script… A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.” She goes on, “But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.” She writes that the majority’s justification, “Comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.” She then warned that the decision, “Gives courts the power to make all manner of policy calls,” and questions, “What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.? In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them… It is a role this Court has now claimed for itself, as well as for other judges.” 

Unfortunately, SCOTUS’ power grab party is just getting started. Next season they’re going after the National Environmental Policy Act (a law that requires federal agencies to consider whether their proposed projects have environmental consequences). SCOTUS’ latest decisions promise to have a far-reaching impact on future and current attempts to curtail global warming, reduce pollution, and regulate toxic chemicals. 

The difference between the decisions in Roe and Oberfell and the current decisions in Dobbs, Ohio and Loper Bright is the failure to apply equal justice under the laws. Activism by the court is appropriate when carefully considered and used to grant and/or expand rights intended to allow American citizens to enjoy equal protection under the law. Instead of using their power to preserve the most important constitutional right afforded to every United States citizen—equal protection under the laws—the majority is abusing its authority as “guardians and interpreters” of the Constitution to restrict equal protection and impose their ideological views on Americans. SCOTUS removed womens’ federally protected right to an abortion with the Dobbs decision just as the Ohio decision restricts the ability of the EPA to do its job protecting citizens from toxins, pollution and warming gasses. The Loper Bright decision erodes the checks and balances that have been a bedrock of our country’s democracy by concentrating the court’s power. The conservative Supreme Court majority cloaks themselves in constitutional rhetoric and outdated concepts such as “original intent,” to justify decisions that can’t be otherwise justified. It does not take a constitutional scholar to understand that the Founding Fathers’ original intent was not to expand the power of the Court so that it could impose its ideology on the American citizens and cripple the institutions enacted to protect our people and our land. While equal justice was once reserved only for white, male landowners, we now have a Supreme Court that seems to reserve equal justice for wealthy, conservative Christian campaign donors. 

So what can a concerned citizen do? 

1. Support Advocacy Nonprofits such as National Resources Defense Council and Earthjustice

2. Vote Responsibly. 

3. OpenSecrets - Find out who’s funding candidates for office to see which special interests are funding their campaigns. if they’re taking money from special interests and https://www.future.green/futureblog/how-to-find-green-candidates - this site 

4. The League of Conservation Voters - LCV provides a “scorecard” for your local elected officials and much more information about legislative efforts to both help and harm environmental causes. 

5. Ballotpedia - Discusses how to evaluate candidates and predict how they will vote in important matters, especially when their views on matters aren’t expressly stated.

Voice Your Concerns: Reach out to your elected officials and those running for office to let them know what’s most important to you as a voter.