Credit: iStock/kamilpetran

by Jasmin Enciu

The Supreme Court is set to decide one of the most consequential environmental cases it has heard in decades.  West Virginia v. Environmental Protection Agency will address whether the Environmental Protection Agency (EPA) shall continue to have the authority to regulate the levels of greenhouse gas emissions. This case puts the EPA in an extremely vulnerable position. VOX News reporter Ian Millhiser even stated, “West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”

West Virginia threatens all government regulations that protect the public, not just the EPA. It is also concerning since the Supreme Court has recently taken an anti-agency regulation stance on many cases. The court has used the “major questions doctrine” in these instances to prevent agency actions from addressing important issues. For example, they recently struck down the CDC’s coronavirus eviction mortarium, which paused evictions for Americans who were suffering and not able to make rent due to the rise in COVID-19 cases. The Majority opinion stated: “It is indisputable that the public has a strong interest in combating the spread of the COVID-19 delta variant…but our system does not permit agencies to act unlawfully even in pursuit of desirable ends…it is up to Congress, not the CDC, to decide whether the public interest merits further action here,”

This reasoning is not a new phenomenon. There is a long history in our justice system concerning agency regulation of corporate activity. Corporations continuously try to avoid, and strike down, any regulation inhibiting their practices. This was made easier following Marshall v. Barlow’s, a 1978 Supreme Court decision granting corporations Fourth Amendment rights, including the “right of the people to be secure in their persons [and] houses…against unreasonable search and seizures,” which permitted companies the option to refuse mandatory federal safety inspections. These inspections were designed to protect workers, consumers, and the environment. 

Environmental protection and our right to a livable world is also threatened by the corporate hijacking of the Fifth Amendment “takings clause” in that any effort to prevent oil, gas and coal from being burned will undoubtedly be challenged by fossil fuel corporations as a corporate “taking” that must be compensated in the unknown trillions dollars worth of “lost future profits.” 

Corporate interests are now pushing the West Virginia case because they want an advance ruling on a non-existent act before the Biden Administration can implement any kind of power-plant regulation. One of the coal companies – Westmoreland Mining Holdings LLC – is suing against “excessive and unreasonable regulations that are never helpful to any business,” stated their general counsel Jeremy Cottrell.  

Coal companies want to continue mining resources to make a profit with minimal oversight and regulation. They want to gut the EPA’s ability to protect those resources and our environment, with minimal care for what that means for humanity in the long run. The likely decision will not come at a worse time, especially considering the increasingly difficult-to-manage and already-present effects of climate collapse, as documented in the latest IPCC report. 

Billions of people are at risk of experiencing water scarcity and our ecosystems will experience irreversible damage if we don’t attempt to reach carbon neutrality by 2050.  We are running out of ways to adapt, so if we keep going at this rate -- without regulating the levels of greenhouse gas emissions (GHG) -- permanent and irreversible environmental damage will become our reality. GHG emissions alone will increase our globe’s temperature by 1.5 degrees Celsius, with scientists long warning us that 2 degrees Celsius is the catastrophe-standard.

Considering the stakes, why is this happening now? West Virginia is tackling legislation that is no longer in effect. The Obama-Era legislation that was never enacted – the Clean-Power Plan (CCP) – is being touted by the coal industry and a bloc of red-states as entirely too strict on the energy sector if it were passed. The CCP’s regulations were based on the 1963 Clean Air Act, which states that the EPA is permitted to set standards based on the best possible system of emissions reductions if it also takes costs into account. If the CCP had taken effect, it would have allowed the EPA to set an emission standard on individual states – with an incredible amount of flexibility on how they could reach that goal – and required them to submit plans on how they would reach that goal. If no plan was submitted, the EPA would have the authority to set one for them.

If we want to avoid complete climate catastrophe, we cannot continue to allow coal and fossil fuel corporations to continue mining and extracting nonrenewable resources with little oversight or regulation. Unfortunately, pushing an agenda of emission regulation through Congress – as the Supreme Court suggested – is unrealistic given the current congressional gridlock on Biden’s Build Back Better plan.

Attempts by the Biden administration to reduce the drilling of oil and gas have also been repeatedly halted by Republican-states who depend on energy revenue. For example, a Louisiana Federal Judge in January, inspired by U.S. District Judge James Cain’s decision to side with GOP states in arguing that raising real cost of climate change would increase energy costs hurt state’s revenue, blocked officials from using higher climate change costs to make rules about polluting industries. Fossil fuel corporations use this argument when lobbying state and federal politicians, and that by regulating their industry there will be a monumental loss of future profits harming the state and people living there. Michael Freeman, a senior attorney at Earthjustice said in response “Louisiana, and the oil and gas industry, have tripped over their own feet in trying to force the federal government to rush full speed ahead with irresponsible oil and gas developments.”

Corporations have been enabled to engage in destructive behavior because they’ve been granted “free speech” rights in reference to a corporation’s ability to donate and invest to candidates’ campaigns and lobby them. The Supreme Court initially determined that corporations have First Amendment rights in First National Bank of Boston v. Bellotti (1978), where Chief Justice Rehnquist in his dissent stated “the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible,” in response to a Massachusetts law prohibiting corporations from spending money that could influence the outcome of elections. This result is that elections have become flooded with corporate money and put politicians in the pockets of industries like oil, gas, and coal. The 2010 Citizens United v FEC Supreme Court decision is what opened the floodgates of big money in elections. ​​ “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations,” Justice Anthony Kennedy wrote for the majority in the decision.

 The Court’s outlook on agency regulation, the realities of corporate constitutional rights, and lack of congressional action due to gridlock all point toward the EPA being gutted in the West Virginia case.

It's more important than ever that we stand up to corporations that abuse their power to do so. We must first abolish all corporate constitutional rights and money as speech as proposed by Move to Amend in the We the People Amendment (HJR48).

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Jasmin Enciu is a recent Move to Amend intern and graduate of George Mason University