The Supreme Court’s Suppression of the EPA

Image from The Wire

In 1962, Rachel Carson’s journal against agricultural environmental practices, Silent Spring, set fire to the nation’s ecological naiveté, spurring a societal call for the inclusion of environmental regulations in legislation, and becoming the first major series of domestic environmental activism. For the first time, the public was faced with the idea that industrialization came with costs greater than dollars, and supporters of environmental policy have since been trying to turn this new mindset into dramatic change. Thus, the Environmental Protection Agency was established in 1970, which created and implemented specific environmental regulations for both government institutions, corporate entities, and individual citizens as an independent agency in the executive branch. Its formation led to substantial conservation trends in legislation, yet recent Supreme Court rulings curtail its authority to regulate environmental actions in the corporate and state sectors. The Environmental Protection Agency’s reduced regulatory capacity not only inhibits the agency from preventing dire threats to public health, but also reflects a shocking new era of Supreme Court decisions limiting agency power across the executive branch. The Court’s decisions allow national policy issues to be taken up in local, partisan courts, strengthening oppositional forces to the EPA throughout lower government branches and the public. Thus, the Court’s fundamental character is drawn into question: are these judicial decisions demonstrations of justice, or abuses of partisanship?

Not only are these decisions worrisome to environmentalists, but they also shine a grim light upon the shifting integrity of our nation’s fundamental operation. The Supreme Court was created in the image and practice of nonpartisan justice, an ideal maintained partially by technical law, but greatly by a sense of national duty and honor. While other sectors of government have strayed from Washington’s hope for a non-party system, the Supreme Court has remained relatively steady, serving as a neutral hand amongst party quarrels in an increasingly divided political environment. However, as fitting with much of our nation’s current politics, this is no longer the case. The recent confirmations of Supreme Court judges Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett by former president Donald Trump shifted the tide of the Court from mere political leanings to a severe political divide, one that conveniently aligns with much of Trump’s highly conservative ideology. This partisan ‘stacking’ of the most powerful judicial system in the country marks an alarming turning point in democracy: one in which justice is used as a means of political agendas, rather than a control against unlawfulness. 

The first, and arguably most harmful, of these cases was the decision in Loper Bright Enterprises v. Raimondo, overturning the decades-old Chevron doctrine, which had previously permitted executive agencies to reasonably interpret vague Congressional statutes, and act upon these interpretations when creating regulations. This allowed Congressional instruction to be enacted in ways that EPA experts deemed best, rather than being constrained to specific wording and instruction from legislative bodies that lack subject expertise. The overturning of this doctrine, however, takes this power of interpretation away from experienced regulatory and environmental specialists in the EPA, and instead gives interpretive power to the courts. The combined field inexperience and partisanship present in courts creates a political dynamic in which EPA regulations no longer serve public health, but rather individual political agendas. With courts determining what the EPA can and cannot do, regulations may begin to take different shapes depending on the politics of an area, creating unfair standards across the board. By opening the door for judges to interject their own political opinions and agendas into agency rules, the Supreme Court has essentially, and arguably knowingly, barred any controversial regulations from happening, slashing the power of the EPA.

Only a matter of days later, the EPA took a more significant blow in the Supreme Court’s decision with the prosecution of Corner Post, Inc. vs. Board of Governors of the Federal Reserve System.  Under this decision, agency policies and regulations can be brought to lawsuit within six years of causing harm to the prosecuting party, rather than within six years of the regulation’s creation, creating the potential for perpetual attacks on agency functions, as anti-agency parties are now free to nitpick nearly anything previously established by agencies like the EPA. Although the case itself had no relation to the EPA, the Court’s decision to allow Corner Post to pursue its claims, despite their violation of the six-year statute of limitations typically imposed on such cases, opens up a dangerous new precedent. Given the politicization of climate control, the EPA is likely to be highly undermined by this rule, as any individual capable of legal action can try their hand at striking down their policies. This turns the EPA from an establishment of climate authority and protection to a stage for partisan grievances to be played out, and such an outcome in tandem with the Chevron decision mere days prior can be seen as an insult to the very nature of the institution. 

The last in this series of anti-agency rulings took place this past July, as the Court stripped the SEC of key enforcement powers in Securities and Exchange Commission vs. Jarkesy, contradicting the previous statutory understanding that executive agencies possessed the power to legally enforce regulations upon citizens and institutions. Before this new precedent, agencies could use in-house adjudications to try violators of regulations in cases that caused public harm. However, the Court ruled that the fraud present in Jarevsky qualified as a common crime that required a jury trial under the Seventh Amendment, despite SEC claims that this fraud qualified as public harm. This sets a narrowed precedent for what agencies are allowed to still independently enforce through in-house adjudications, transferring this congressionally-assigned executive power to the already-clogged court systems. Therefore, the enforcement of agency regulations, such as those created by the EPA, through the courts takes far more time and finances, meaning not only that agencies are simply less capable of enforcing their rules, but that decisions regarding their policies are now subject to political biases in court. Since the EPA particularly relies on the public harm clause for enforcement rights, the Supreme Court’s decision to shrink what falls under this allowance has the potential to severely undermine the legitimacy of their policies. 

Through these decisions, the Supreme Court is taking indirect political action, as it infuses agency functions with external political influence, an idea that particularly threatens the increasingly partisan issue of environmental regulation under the EPA. A politicized process means that citizens in areas with conservative courts may suffer worsened pollution and climate conditions, and firms in more liberal districts may suffer reduced competitive capacity by having to adhere to regulations that others have struck down. Not to mention, an increase in firms’ abilities to produce emissions and use ecologically harmful practices degrades our planet and quality of public health. Therefore, there is clear importance in maintaining nonpartisan, practical function within the EPA, rather than muddling its policies and authority through court politics. 

Our current political landscape is rife with political strategies and attacks aimed at undermining opposing party views, rather than executing the best service for public good. This willful ignorance of truth and duty in favor of personal political position is something disappointingly expected of politicians, but if this trend has truly infiltrated the Supreme Court, our society could be facing a departure from true democracy transcending mere disappointment. Without the Supreme Court as a function of justice in the government, how can we truly say that we govern with justice? If one of the major systems of checking and balancing begins acting out of personal self-interest, how can we rely on the government to maintain our democracy? While these may be too extreme of questions to act based on these decisions alone, it does reflect a potential concern for the future of the American government. 

As a society, we must consider this as we make civic choices and act as responsible citizens: our democracy is a keystone of our country, and institutional issues like this demonstrate the fragility of this democracy if citizens don’t take action towards its preservation. Since justices can’t be removed through a direct voting system, not to mention the extremity of this approach, there is something to be said for shifting the environment in which these justices operate. The extreme partisan divisions evident in our modern world lead to equally divided decisions as leaders seek not to make decisions for the good of the nation, but to make ones that further a party agenda or earn political favor. Taking steps to reduce this arguably corrupt political landscape, such as voting for leaders that recognize this as an issue, reducing the single-sidedness in daily political encounters and discussions, and examining prevalent issues through a less biased lens can help shift our nation’s mindset as a whole. As citizens of the United States, and therefore beneficiaries of our democratic system, we bear an ethical responsibility towards the maintenance of a true social contract, and the terms of this metaphorical contract similarly fall in our hands. How we interact with politics on both small and large scales is instrumental in this contract, therefore the Supreme Court’s recent attacks against agency power and the EPA should serve as both a harsh warning and call to action as we reconsider our own impacts, and reframe how we view our individual roles in government at such a critical point in our nation’s democracy.