Speaker 1: The Supreme Court was expected to rule this morning in
Speaker 1: the case West Virginia versus EPA. They did not issue ruling.
Speaker 1: They may issue one tomorrow. It might be Wednesday, or
Speaker 1: maybe later in the week. Nobody knows. Complicating matters further,
Speaker 1: given that it's been held to the end of this
Speaker 1: current Supreme Court session, folks were speculating that it will
Speaker 1: either be a remarkably terrible ruling or that they'll decide
Speaker 1: that actually, they really shouldn't be ruling at all in
Speaker 1: this case. I spoke with Richard Revez, a law professor
Speaker 1: at NYU School of Law and director of the Institute
Speaker 1: for Policy Integrity there about that option earlier this year, well.
Speaker 2: Before the oral argument, I had the very strong and
Speaker 2: that the right thing for the Court to do was
Speaker 2: not to decide this case and to dismiss it. Supreme
Speaker 2: cord as a mechanism for dismissing cases is improvidently, granted,
Speaker 2: and it's not something it does frequently, but on average
Speaker 2: it's been doing it about twice a year in recent years.
Speaker 2: In this case seems like an excellent candidate for that
Speaker 2: disposition because there is no regulation in place. The Clean
Speaker 2: Power Plan is not in place, and the Affordable Clean
Speaker 2: Energy Rule is not in place. A clean power plant,
Speaker 2: of course, was the Abomba administration regulation of the greenhouse
Speaker 2: gas emissions of existing power plans, and the Affordable Clean
Speaker 2: Energy Rule was the Trump administration's toothless and potentially counterproductive replacement.
Speaker 2: But neither are in place, and neither would go back
Speaker 2: into effect no matter what the Court does. So essentially,
Speaker 2: no matter what the Court does, there's not going to
Speaker 2: be a clean power plant in place. There's not going
Speaker 2: to be an Affordable Energy rule in place. So all
Speaker 2: the court could do is give EPA advice. This is
Speaker 2: known in this lingo as an advisory opinion on what
Speaker 2: its future rule might look like. But the federal courts
Speaker 2: don't have the authority to issue advisory opinions. That's been
Speaker 2: clear since essentially the beginning of the Republic. So going
Speaker 2: into the case, I was, you know, the strong sense
Speaker 2: that this was the right thing for the court to.
Speaker 3: Do, and what was your sense of the oral arguments
Speaker 3: and where this seems to be headed.
Speaker 2: Well, I mean, coming out of the case, I still
Speaker 2: think that that is the right I think for the
Speaker 2: Court to do, for exactly the same reason that I
Speaker 2: thought about that before the argument. But I have to
Speaker 2: say that while these issues were discussed, it's not clear
Speaker 2: to me that five justices would find that approach compelling.
Speaker 2: You never know, you can be surprised. You can't read
Speaker 2: too much from the questions in oral argument, but it
Speaker 2: didn't look like that way of thinking about the case
Speaker 2: was foremost in the minds of five of the justices.
Speaker 1: Attorney Jason Rylander from the Center for Biological Diversity expanded
Speaker 1: on this idea.
Speaker 4: Yeah, it's really interesting. Back when the Clean Power Plan
Speaker 4: was originally developed by the Obama administration, industry groups sued
Speaker 4: over it, and the litigation was ongoing, but the Supreme
Speaker 4: Court reached out and issued an unprecedented stay without even
Speaker 4: allowing the DC Circuit to complete oral arguments or issue
Speaker 4: or ruling. So, for whatever reason, the contours of EPA's
Speaker 4: authority under the Clean Air Act seemed to be of
Speaker 4: interest to this court. And here again they've taken a
Speaker 4: case that they really don't have to take because the
Speaker 4: Biden administration has pledged that it's going to develop its
Speaker 4: own rules for regulating stationary power plant missions and that
Speaker 4: those rules may not look anything like either the Clean
Speaker 4: Power Plan or the Affordable Clean Energy Plan that the
Speaker 4: Trump administration developed, which is also not in effect. So
Speaker 4: the real concern here is that this Court is basically
Speaker 4: issuing an advisory opinion about EPA's authority in the absence
Speaker 4: of an actual rule in front of it for it
Speaker 4: to review. Court has already ruled in a couple of
Speaker 4: different cases that EPA has authority to regulate greenhouse gases.
Speaker 4: They said so first in Massachusetts vi. EPA. They said
Speaker 4: so in AP versus Connecticut case, and they also said
Speaker 4: so in another case that came a couple years later.
Speaker 4: And so you know, to the extent that the Court
Speaker 4: wants to get into these sort of major questions about
Speaker 4: what Congress has spoken clearly to in terms of authority
Speaker 4: for agencies to regulate, that big question has already been addressed.
Speaker 4: What we're really getting into now is sort of the
Speaker 4: weeds of whether Section one eleven allows EPA to create
Speaker 4: a best system of emissions reduction that would lead to
Speaker 4: the most effective and efficient reductions in greenhouse gas pollution.
Speaker 4: And that's the kind of question that is usually left
Speaker 4: to agency discretion.
Speaker 1: Like Revez explained, there is precedent for the Court to
Speaker 1: opt not to rule in cases where it really makes
Speaker 1: no sense for it too. But given all the other
Speaker 1: norms these justices are breaking, it's hard to believe they'll
Speaker 1: go that route, especially given that Justices Kavanaugh and Barrett
Speaker 1: consistently brought up something called the major questions doctrine during
Speaker 1: oral arguments. Here's Rylander again.
Speaker 4: I think, to put it simply, there's clearly an anti
Speaker 4: rede regulatory appetite among certain justices of this Court, and
Speaker 4: we've seen that in a number of different cases dealing
Speaker 4: with the extent of agency authority. And this idea that
Speaker 4: they can use this major Questions doctrine to kind of
Speaker 4: look at a regulation and decide in the abstract whether
Speaker 4: Congress granted authority to address that issue without even really
Speaker 4: looking at an actual rule is bizarre. It is an
Speaker 4: expansion of judicial power in a way that is really
Speaker 4: pretty inappropriate. And we've seen commentators kind of across the
Speaker 4: political spectrum warning against this expanded use of the Major
Speaker 4: Questions doctrine to attack agency rulemaking, but that seems to
Speaker 4: be where a few of the justices want to go.
Speaker 1: This is part of the general right wing project to
Speaker 1: attack the so called administrative state. If you spend any
Speaker 1: time at all online, you might hear conservatives say things like, well, actually,
Speaker 1: regulatory agencies are unconstitutional. In other words, the Constitution doesn't
Speaker 1: allow for Congress to hand over its powers to agencies.
Speaker 1: The argument for agencies, of course, has historically been that
Speaker 1: legislators can't possibly be experts on everything, and it makes
Speaker 1: a certain amount of sense to keep the nuts and
Speaker 1: bolts of applying legislation free of the sort of grandstanding
Speaker 1: and influence peddling that has been a hallmark of American politics.
Speaker 1: But for many conservatives, not only is there no need
Speaker 1: for the EPA to develop an emissions reduction plan absent
Speaker 1: explicit instructions to do so from Congress, but also there's
Speaker 1: really no need for an EPA at all. You might
Speaker 1: recall an episode we put out earlier this year with
Speaker 1: Lisa Greeves. She's a former Senate investigator who went on
Speaker 1: to run the Center for Media and Democracy for several
Speaker 1: years before starting her own research firm, True North. Lisa
Speaker 1: has been tracking the right wing project to take over
Speaker 1: the judiciary almost since its inception. Here she is explaining
Speaker 1: some of these structural changes that cases like West Virginia
Speaker 1: versus EPA are driving towards Yeah.
Speaker 5: I mean, they've declared, you know, this war on the
Speaker 5: so called administrative state. Obviously there's roots of that in Reagan,
Speaker 5: and some of the lawyers who were active then, who
Speaker 5: became judges, and some of the people who are in
Speaker 5: the judiciary have been you know, in my view, very partisan,
Speaker 5: very right wing, you know, sort of politicians and rogues
Speaker 5: who are attempting to restructure the modern American state through
Speaker 5: judicial rulings. But you know, eighty percent of the of
Speaker 5: the Supreme Court has been appointed by Republicans, and they
Speaker 5: just haven't been doctrinaire enough for these you know, very
Speaker 5: elite reactionaries like Leonard Leo.
Speaker 1: Leonard Leo of course, ran the Federalist Society for decades.
Speaker 1: It's a group of conservative lawyers and justices who have
Speaker 1: been integral to the project to use the judicial system
Speaker 1: to further a conservative agenda. Leo himself hand picked many
Speaker 1: of the justices on the Supreme Court bench today. Lisa
Speaker 1: Graves helped to make the general public more aware of
Speaker 1: the Federalist Society's role in picking justices when they began
Speaker 1: telling Trump who to nominate. Leo and the Federalist Society
Speaker 1: are also deeply entwined with another key component of the
Speaker 1: right wing legal machine, RAGA, the Republican Attorney's General Association.
Speaker 1: That organization was created as a reaction to the tobacco
Speaker 1: litigation in the nineteen nineties, which was kicked off by
Speaker 1: a Democratic attorneys general. At the time, Democrats outnumbered Republicans
Speaker 1: in state attorneys general offices almost two to one. The
Speaker 1: Republican attorneys general in Alabama, South Carolina, and Texas decided
Speaker 1: to form a group that would dedicate itself to getting
Speaker 1: more Republican attorneys general elected and working together to advance
Speaker 1: it's a conservative legal agenda. The Texas Attorney General at
Speaker 1: that time was now Senator John Cornyn. His second in
Speaker 1: command was Ted Cruz, two guys who come up over
Speaker 1: and over again in the context of these big Supreme
Speaker 1: Court cases. At any rate, in its first decade, RAGA
Speaker 1: was just focused on winning elections. Then in twenty.
Speaker 6: Ten, mister Olson, are you taking the position that there
Speaker 6: is no difference in the First Amendment rights of an individual?
Speaker 6: A corporation, after all, is not endowed by its creator
Speaker 6: with inalienable rights. So is there any distinction that Congress
Speaker 6: could draw between corporations and natural human beings for purposes
Speaker 6: of campaign finance.
Speaker 7: What the Court has said in the First Amendment context
Speaker 7: New York Times US is Sullivan, Gross Chain versus Associated Press,
Speaker 7: and over and over again as a corporations are persons
Speaker 7: entitled to protection under the First Amendment.
Speaker 1: That was the late Justice Ruth Bader Ginsberg questioning Attorney
Speaker 1: Ted Olsen during the landmark Citizens United case in which
Speaker 1: the Court ultimately ruled that corporations have the same free
Speaker 1: speech protections as individuals and that money, in this case,
Speaker 1: money spent on a movie length political attack ad is speech.
Speaker 1: That ruling opened up a flood of dark money into politics,
Speaker 1: billions of dollars coming from who knows where, to further
Speaker 1: who knows what agenda, and suddenly RAGA became a key
Speaker 1: political tool. Here's Graves again.
Speaker 5: Something has happened over the last twenty years. And I
Speaker 5: had looked at this back when I was working on
Speaker 5: the Senate Judiciary Committee. In terms of this, the rise
Speaker 5: of RAGA, the Republican Attorney's General Association in where we
Speaker 5: know that it's a pay to play operation, we know
Speaker 5: that it has had enormously distorting effect on US law.
Speaker 5: It provides a mechanism for corporations to pass money through
Speaker 5: to help attorneys general in ways that they would not
Speaker 5: be able to individually solicit for their own campaigns given
Speaker 5: their role, their regulatory role over those very industries. And
Speaker 5: that's been going on since RAGA was created, back more
Speaker 5: than twenty years ago now, and it has accelerated under
Speaker 5: some of the attorneys general who have led it, like
Speaker 5: Scott Crewe was who was, you know, in my view,
Speaker 5: another corrupt individual, someone who was lacks on ethical rules
Speaker 5: to say the least, and who was willing to do
Speaker 5: the bidding of the oil industry in attacking climate legislation
Speaker 5: and climate rules, even the very modest CPP the Clean
Speaker 5: Power Plan rules, to advance the interests of the funders
Speaker 5: of RAGA.
Speaker 1: Here's where we come back to West Virginia versus e PA.
Speaker 1: It's a RAGA case, so might even say the RAGA case.
Speaker 1: It was the jewel of Scott Prewitt's reign as the
Speaker 1: head of RAGA. You might remember that Prewitt went on
Speaker 1: from there to run the EPA, an agency he very
Speaker 1: much wanted to get rid.
Speaker 5: Of these Republican attorneys general behave in general, they are
Speaker 5: operating most often we've seen at the behest of the
Speaker 5: industries that they're soliciting funds for to fund RAGA. That's
Speaker 5: interesting beyond RAGA is funding the corporate funders of RAGA,
Speaker 5: we know that it now is receiving a substantial amount
Speaker 5: of money from one of the emerging big dark money operations,
Speaker 5: which is Leonard Leo's operation, which was funded, you know,
Speaker 5: funded through a group that's now defunct that has subsequently
Speaker 5: you know, basically been rebranded or renamed as Leo has
Speaker 5: has re uh launched his his operations after it was
Speaker 5: exposed by The Washington Post last year. So RAGA now
Speaker 5: is not just a recipient of of donations from big
Speaker 5: oil and big huge corporations, but it's also a major
Speaker 5: recipient of funds in which the source is completely unknown,
Speaker 5: and they've particularly targeted states in state AG's offices to
Speaker 5: advance Leonard's longer term agenda, which he described to the
Speaker 5: Council of National Policy, and this was documented in that
Speaker 5: Washington Post story, but he described in that in a
Speaker 5: speech to c n P last year that his that
Speaker 5: America stands at the precipice of what he called the
Speaker 5: revival of what he described as the quote structural constitution,
Speaker 5: and he told the CNP audience that no one alive
Speaker 5: in that room had seen the type of legal revolution
Speaker 5: that America was about to see based on the appointments
Speaker 5: to the Supreme Court and other courts to revive this
Speaker 5: so called structural constitution to the law as it existed
Speaker 5: pre New Deal. And you know, that affects a whole
Speaker 5: host of laws. It affects civil rights laws, that it
Speaker 5: will affect labor laws and labor rights, environmental regulation and more.
Speaker 5: And it's an attempt, in my view, to really limit
Speaker 5: the ability of Congress to pass laws, to limit the
Speaker 5: ability of agencies to regulate corporations, and to you know,
Speaker 5: sort of change the whole modern structure of government basically
Speaker 5: in terms of the administrative agencies, but also the rights
Speaker 5: of citizens and the relationships between the United States as
Speaker 5: a government and other governments.
Speaker 1: That is the master plan that West Virginia versus EPA
Speaker 1: is just one part of.
Speaker 6: It.
Speaker 5: Would be an extreme, radical, reactionary agenda to change our
Speaker 5: rights and limit our powers in our democracy through our
Speaker 5: representatives in ways that serve a very elite agenda, the
Speaker 5: agenda of the people who fund Leonard Leo and Leo's
Speaker 5: operations and fund the RAGA, the Republican Coturney General's Association,
Speaker 5: and have been really attempting to work a legal revolution
Speaker 5: through offices that we would otherwise consider to be independent.
Speaker 5: It would be nice to have Attorneys general of states
Speaker 5: who were not so captive to advancing the interests of
Speaker 5: Charles Koch, but unfortunately we are in an era in
Speaker 5: which those interests have been dominating.
Speaker 1: The EPA is, of course not the only regulatory agency
Speaker 1: that these interests would like to see peer, but we
Speaker 1: don't have to just stand by and watch it happen.
Speaker 1: I'm going to spend the second half of this episode
Speaker 1: talking about what might be up ahead and some of
Speaker 1: the tools still available to us even if all of
Speaker 1: the worst case scenario predictions about West Virginia versus EPA
Speaker 1: come true this week. It's coming up after this quick break. Okay,
Speaker 1: So when it comes to West Virginia versus EPA, first,
Speaker 1: I think it's important to be clear about what is
Speaker 1: and isn't actually being argued here, because even with this
Speaker 1: Supreme Court, they can't just rule on stuff that's not
Speaker 1: even vaguely mentioned in the case. I've been seeing a
Speaker 1: lot of overstatements about what's at stake here, everything from
Speaker 1: the Court making it illegal to regulate CO two to
Speaker 1: it shutting the EPA down altogether. And look, I'm not
Speaker 1: saying that either or both of those is out of
Speaker 1: the realm of possibility. At some point. There're certainly targets.
Speaker 1: They just wouldn't happen as a result of this case.
Speaker 1: What the justices can do in this particular case is
Speaker 1: say that under the Clean Air Act, the EPA does
Speaker 1: not have the authority to create an emissions reduction system
Speaker 1: or plan or policies that would in effect overturn the
Speaker 1: precedent set by Massachusetts versus EPA. That was the case
Speaker 1: a few years ago when the Court said the EPA
Speaker 1: did have the authority to regulate greenhouse gases. Here's Jason
Speaker 1: Rylander again to explain.
Speaker 4: I think the worst case scenario here is that they
Speaker 4: have an EPA's authority in a way that is going
Speaker 4: to make it more difficult for the Biden administration and
Speaker 4: future administrations to regulate effectively under Section one eleven of
Speaker 4: the Clean Air Act. The good news is Clean Air
Speaker 4: Act is broader than that, and there are a lot
Speaker 4: of other ways that we can get at greenhouse gas pollutions.
Speaker 4: And we also know that greenhouse gas pollutions emerge from
Speaker 4: things other than stationary coal and.
Speaker 8: Power plants.
Speaker 4: In fact, the market alone has already produced greater emissions
Speaker 4: reductions than had been predicted if the clean power plant
Speaker 4: had gone into effect.
Speaker 1: One way to get at greenhouse gases, especially if your
Speaker 1: top concern is CO two, is through an authority. The
Speaker 1: EPA already very much has, which is regulating air pollution
Speaker 1: under the Clean Air Act more broadly, specifically particulate matter.
Speaker 1: So this is the stuff that comes from combusting fossil fuels,
Speaker 1: it's what comes out of exhaust pipes, it's what is
Speaker 1: released at factories, power plants, all of that stuff, and
Speaker 1: the EPA already regulates that and has already moved to
Speaker 1: tighten those regulations. Another way to get at greenhouse gases
Speaker 1: is an approach we talked about in a recent episode
Speaker 1: invoking the Toxic Substances Control Act or TOSCA.
Speaker 9: EPA aware of all of these things, and they're worried
Speaker 9: about it, and all the staff is running around wishing
Speaker 9: that they could do something. The problem is they felt
Speaker 9: that they didn't have the authority and that none of
Speaker 9: the laws gave the authority. In fact, the authority has
Speaker 9: been hiding in plain sight the entire time under the
Speaker 9: Toxic Substances Act. But there was sort of a perceived
Speaker 9: wisdom that the Toxic Substances Control Act didn't work based
Speaker 9: on how the Agency got hammered over asbestos. And it
Speaker 9: was actually the agency's full because they didn't do their
Speaker 9: due diligence, but they thought they had a slam dunk there.
Speaker 9: It didn't work. They kind of threw up their hands
Speaker 9: and say, we have to work under the Clean Air Act,
Speaker 9: which is an abysmal law.
Speaker 1: That is former EPA scientist Don Viviani, speaking at a
Speaker 1: press conference earlier this month, he says climate advocates have
Speaker 1: been sleeping on TOSCA, which provides a much stronger basis
Speaker 1: for the EPA's authority to regulate greenhouse gases.
Speaker 9: This sort of problem is exactly the thing the TUSK
Speaker 9: was designed for. Congress knew that there were problems out
Speaker 9: there that were multimedia multiprogram that a single media Act
Speaker 9: couldn't handle, and that we needed something more expansive. It
Speaker 9: was designed to take care of things that the other
Speaker 9: laws weren't properly taken care of, and if you look
Speaker 9: back at the history of climate it's quite clear that
Speaker 9: none of the other laws are taking care of this.
Speaker 9: So this is exactly what TOSCO was designed to do.
Speaker 1: Viviani has signed on to a petition filed with the
Speaker 1: EPA requesting that the agency made a determination under TOSCA
Speaker 1: that greenhouse gas emissions pose a risk to human health
Speaker 1: and the environment, and then regulated as such. Other petitioners
Speaker 1: include climate scientists doctor James Hanson and climate accountability expert
Speaker 1: Richard Heaty, who authored the themed Carbon Major's Report which
Speaker 1: pinpointed the seventy companies most responsible for climate change.
Speaker 10: OSCAR actually was used in nineteen seventy eight for just
Speaker 10: this purpose with respect to CFCs on the ground in
Speaker 10: the rule that CFCs were endangering the ozone layer and
Speaker 10: presented a serious risk with respect to global warming. CFC's
Speaker 10: are also a gas and therefore you know there actually
Speaker 10: is strong precedent in EPA's own actions and utilizing this
Speaker 10: statute to kickstart in the effort to get rid of
Speaker 10: that potent pollutant that has very strong greenhouse gats forcing
Speaker 10: effect as.
Speaker 1: Well, it also has deep benefit of clear language around
Speaker 1: the EPA's authority, language that was strengthened with bipartisan support
Speaker 1: in twenty sixteen.
Speaker 9: They just reauthorized the Act in twenty sixteen was a
Speaker 9: bipartisan a reauthorization. So clearly this is the the language
Speaker 9: that the TOSK is supposed to deal with. Unreasonable risk
Speaker 9: is recent and it was a bipartisan It was a
Speaker 9: bipartisan passage.
Speaker 1: Doctor James Hansen says he hopes this effort will give
Speaker 1: the agency the authority to act before it's too late.
Speaker 11: We're so far off and that just hasn't hasn't sunk in.
Speaker 11: And you know, even though we have international organization, the
Speaker 11: Framework Convention on Climate Change and the conferences of the parties,
Speaker 11: some of the stuff that they're coming out with is
Speaker 11: pretty nonsensical. The last cop the head said, well, we've
Speaker 11: kept within the possibility to stay under one point five
Speaker 11: degrees warming. That's absolute bullshit. There's too much inertia in
Speaker 11: the energy system and in the warming that's in the pipeline.
Speaker 11: Just because the planet is now out of balance by
Speaker 11: an enormous amount doesn't sound like much a little more
Speaker 11: than a one walt per meter square, but that contains
Speaker 11: more than one degree celsius additional warming, and we're already
Speaker 11: at one point too. So yeah, we've passed the point
Speaker 11: of being dangerous. But we can still deal with the
Speaker 11: situation if we begin to make fossil fuels pay their
Speaker 11: cost to society.
Speaker 1: Multiple climate cases all over the world more than eighteen
Speaker 1: hundred and in fact A trying to do that as well,
Speaker 1: all of which will continue irrespective of the outcome of
Speaker 1: West Virginia versus EPA. Dan Gilburn, Executive Director and General
Speaker 1: Counsel for the Climate Protection and Restoration Initiative, is the
Speaker 1: lawyer spiritheading the TOSCA EPA petition, and he says the
Speaker 1: outcome of West Virginia Versus EPA shouldn't have any impact
Speaker 1: on that effort at all.
Speaker 4: One eleven D of the Clean Air Act has nothing
Speaker 4: to do with our petition. Under the Toxic Substances Control Act.
Speaker 4: One eleven D of the Clean Air Act confers authority
Speaker 4: on EPA to compel emissions controls from existing power plants,
Speaker 4: and there is a specific question as to whether the
Speaker 4: Obama EPA, in fashioning the now dormant Clean Power Plan
Speaker 4: over stepped its bounds and read into that provision of
Speaker 4: law authority to restrict emissions outside the fence line of
Speaker 4: power plants rather than just inside the fence line of
Speaker 4: power plants. So that's a specific, fairly narrow technical issue.
Speaker 4: Those including West Virginia and a number of other conservative
Speaker 4: states and a portion of the fossil fuel industry are
Speaker 4: urging the Supreme Court in that case to rule much
Speaker 4: more broadly, to say that without express language in this statute,
Speaker 4: no federal agency can really do much to restrict economic
Speaker 4: activity at the center of industrial policy, within a sector
Speaker 4: of the economy. And so to have a very broad
Speaker 4: prohibition against not only the EPA but other agencies attempts
Speaker 4: to restrict activity that even where it presents a significant
Speaker 4: risk to human health or the environment. But you know,
Speaker 4: it's very unclear to me whether the Supreme Court will
Speaker 4: take up that invitation. I'm not saying it's impossible.
Speaker 8: We will see.
Speaker 4: But the language at issue in section one to eleven
Speaker 4: D I think, while the EPA did construe it correctly,
Speaker 4: is far more vague or ambiguous than the language that
Speaker 4: we're relying on under the Toxic Substance of Control Act
Speaker 4: in our petition. All that is to say therefore that
Speaker 4: I think that even if the Supreme Court rules very
Speaker 4: broadly in wass Universus EPA, the legal basis for our
Speaker 4: petition under the Toxic Substance Control Act should be unaffected.
Speaker 1: Which doesn't necessarily mean that a case about the EPA's
Speaker 1: authority to regulate greenhouse gases under TOSCA wouldn't also land
Speaker 1: at the Supreme Court. But Scalprin says he's ready. Can
Speaker 1: you walk through some of the potential outcomes here? I
Speaker 1: know you're expecting legal challenges. What might those be?
Speaker 4: Well, we're in a retigious society. This is a industry,
Speaker 4: the fossil fuel industry, the predominant source of greenhouse gas
Speaker 4: emissions in this country, that is used to getting its way.
Speaker 4: On the other hand, there have been a series of
Speaker 4: successful regulatory programs that have limited the industry's unfettered right
Speaker 4: to treat the atmosphere as an open sewer, and it
Speaker 4: has adjusted well, and we believe that it would adjust
Speaker 4: well to this type of regulation. That is to say,
Speaker 4: the industry would be transformed into an energy industry. Just
Speaker 4: last week, the United Nations General Secretary called for the
Speaker 4: phase out of fossil fuels worldwide. They don't have to
Speaker 4: go to court and challenges. They could participate in good
Speaker 4: faith in the rulemaking process and we come up with
Speaker 4: a reasonable pathway to get from a disaster to safety.
Speaker 4: In the alternative, they could challenge EPA's decision. That would
Speaker 4: I think be legal insanity for them to argue that
Speaker 4: greenhouse gas emissions do not present the risk of injury
Speaker 4: to health for the environment. I think that they would
Speaker 4: certainly lose on that. We are prepared to go to
Speaker 4: court to defend a favorable agency determination, and we will
Speaker 4: do what's necessary, you know, going from one end of
Speaker 4: this country to another, to galvanize the public to ensure
Speaker 4: that the administration has the political support it needs to
Speaker 4: do what is right here, and that is to take
Speaker 4: strong action to preserve our nation from the continuing threat
Speaker 4: of devastating climate change. It's within reach because of this
Speaker 4: petition and pointing out, you know, this strong tool that
Speaker 4: has been hiding in plain view. It's a tool that
Speaker 4: therefore should be used to address what the President has
Speaker 4: called an existential risk, an existential threat.
Speaker 1: And then there are these short term economic levers, particularly
Speaker 1: in the form of financial incentives to move quickly away
Speaker 1: from fossil fuels. Biden's recent use of the Defense Production
Speaker 1: Act to ramp production of both heat pumps and solar
Speaker 1: panels and lift the tariff on imports for a couple
Speaker 1: of years is a key example. Climate advocates have been
Speaker 1: asking Biden for years to declare a climate emergency in
Speaker 1: order to make moves exactly like this. Here's the President's
Speaker 1: Climate advisor, Gina McCarthy explaining more about it on CBS News.
Speaker 12: The President actually took three very decisive action yesterday, and
Speaker 12: that was done in response to an urgent need to
Speaker 12: grow the domestic energy economy and strengthen our energy security.
Speaker 12: We were seeing the potential to significant layoffs solar projects
Speaker 12: not coming online, grid instability as a result, we wanted
Speaker 12: to protect those jobs who wanted to grow and spurred
Speaker 12: the domestic economy. So we provided a small window of
Speaker 12: opportunity really, which is a twenty four month bridge that's
Speaker 12: going to jumpstart ours solar imports while we reinforce the
Speaker 12: integrity about trade laws in those processes by taking action
Speaker 12: to really spur the domestic production of solar right here
Speaker 12: in the United States of America.
Speaker 1: Now, climate advocates want Biden to do more invoking the
Speaker 1: Defense Production Act, and it could be a way to
Speaker 1: mitigate some of the damage of a bad ruling in
Speaker 1: West Virginia versus EPA. So there is some hope that
Speaker 1: if the West Virginia versus EPA ruling really does dramatically
Speaker 1: curb the government's ability to regulate greenhouse gas emissions, these
Speaker 1: short term economic levers could go a long way. Meanwhile,
Speaker 1: Lisa Graves says, those who want to see climate action
Speaker 1: need to be as imaginative and ruthless as those who
Speaker 1: have sought to block it for decades.
Speaker 5: You know, people are cynical or whatever. And you know,
Speaker 5: maybe there's some cause for cynicism, given the political landscape
Speaker 5: we've inherited, particularly in the Senate with so much so
Speaker 5: many coke back senators there.
Speaker 4: But the fact is.
Speaker 5: Is that, you know, the right is almost unbound in
Speaker 5: its imagination of where it wants to take America in
Speaker 5: terms of how far they're willing to, you know, basically
Speaker 5: roll back the twentieth century, you know, and it and
Speaker 5: and yet and yet it's not you know, it's not
Speaker 5: described as radical or reactionary. It is described as you know,
Speaker 5: these ideas we're just debating these ideas. In fact, they're
Speaker 5: seeking to implement them, and they've been they've been having
Speaker 5: success really since the Reagan administration.
Speaker 1: Sweeping and restrictive ruling in West Virginia versus EPA. Also
Speaker 1: doesn't rule out the possibility of Congress passing a law
Speaker 1: that would regulate greenhouse gas emissions, but that has not
Speaker 1: worked to date, even when Democrats had a much stronger
Speaker 1: majority in the government. So there's not a ton of
Speaker 1: optimism around that path. At the farthest left end of
Speaker 1: the spectrum, some progressives are saying, look, it's time to
Speaker 1: think past our existing structures, particularly as we see them
Speaker 1: failing all around US. I spoke with Max Berger, one
Speaker 1: of the founders of Momentum, a movement incubator that helped
Speaker 1: launch the Sunrise Movement, to get his take on this
Speaker 1: a few months ago.
Speaker 13: If you just were to step back and look at
Speaker 13: the US as a country, it would be very clear.
Speaker 13: You know, the current constitutional arrangement is not long for
Speaker 13: this world. You know, you have a significant subset of
Speaker 13: the population, particularly the white population, although not only that,
Speaker 13: is really terrified about the transition away from a white
Speaker 13: majority population to a multi racial majority and that's happening
Speaker 13: in the context of you know, world historic inequality. Right,
Speaker 13: so you really do have the conditions for ethno nationalist
Speaker 13: authoritarian politics, right like, call it fascist, call it ethno
Speaker 13: nationalist authoritarian, call it white supremacist politics, in which there
Speaker 13: is a significant number of people that are willing to
Speaker 13: use violence and do not really subscribe to the beliefs
Speaker 13: that are required of participating in a democracy because they're
Speaker 13: afraid of losing power within that democracy to other ethnic groups.
Speaker 13: That's the kind of beginning of my analysis here. And
Speaker 13: if you take that, you know, as a kind of
Speaker 13: skeleton key for what's going on, you're a lot becomes
Speaker 13: more clear in that you know, that group of people,
Speaker 13: that kind of white supremacist plurality is not big enough
Speaker 13: to govern the country, but it is big enough to
Speaker 13: take over the Republican Party, as Trump showed, and through
Speaker 13: their control of the Republican Party, are able to take
Speaker 13: control of state and federal governments because we have a
Speaker 13: very anti democratic political system, because you know, our political
Speaker 13: system is the result of a compromise with slaveholders, and
Speaker 13: so vastly over represents small rural states.
Speaker 8: That white people have more power, and so.
Speaker 13: That white supremacist plurality can take over the federal government,
Speaker 13: state governments with a minority of votes. And you know,
Speaker 13: because of other aspects of our anti democratic political system,
Speaker 13: the Senate as we're seeing now, the electoral college, as
Speaker 13: you know, we are kind of threatened with every four
Speaker 13: years that there's going to be another instance in which the.
Speaker 8: Winner of the popular vote does not become president.
Speaker 13: And you know that has happened recently a number of times.
Speaker 13: In the two party system, which allows for that, you know,
Speaker 13: let's say twenty five to forty percent.
Speaker 8: Of the population to govern, we are not.
Speaker 13: We're not going to see the multi racial majority have
Speaker 13: an opportunity to turn its will into law in the
Speaker 13: next ten to fifteen years. And I think the amount
Speaker 13: of tension that that will generate will break the political system.
Speaker 13: I don't think that, you know, I don't think that
Speaker 13: the amount.
Speaker 8: Of friction that will be created in the.
Speaker 13: In the in the popular will being stymied in that way,
Speaker 13: particularly when the people in power are taking active steps
Speaker 13: to move us away from competitive elections and limit people's rights.
Speaker 13: I cannot imagine a situation in which the multiracial majority
Speaker 13: takes that lying down. And I also don't think that
Speaker 13: the white nationalists plurality is going to become less vociferous
Speaker 13: in their opposition to multiracial democracy. So you know, and
Speaker 13: if you were to talk about this with a comparative
Speaker 13: political scientist, they would tell you, you know, if you have.
Speaker 8: This kind of.
Speaker 13: Demographic transition happening the worst case scenario, our political system
Speaker 13: is basically designed as poorly as possible to manage that
Speaker 13: kind of a demographic transition because the two party system
Speaker 13: collapses all divisions in society into a zero, all or
Speaker 13: nothing competitive existential.
Speaker 8: Conflict.
Speaker 13: And you know, when that gets racialized or ethnicized, it
Speaker 13: can become dangerous very quickly. You know, we're as polarized
Speaker 13: as any time since before the Civil War. And in addition,
Speaker 13: you know, the with the with the separately elected presidency
Speaker 13: and a bi cameral system, we have what ca what
Speaker 13: a political scientists referred to as a profusion of veto
Speaker 13: points right, So it's very very difficult for bills to
Speaker 13: become law as we see with you know, anything, But
Speaker 13: the example I always use is is gun control.
Speaker 8: And you know, after name a massacre.
Speaker 13: People always ask if this stuff is eighty five percent
Speaker 13: approval rating?
Speaker 8: Why can't it pass?
Speaker 13: And the truth of the matter is that very little
Speaker 13: can pass, you know, very little, very few laws make
Speaker 13: it through the our system. And you know, there's a
Speaker 13: stat that I think does not bode well. I tweeted
Speaker 13: this the other day and people thought I was saying
Speaker 13: this not in jest, but you know that there's a
Speaker 13: there's a stat that the United States is the only
Speaker 13: system that has a separately elected executive branch that is
Speaker 13: not at some point collapsed into dictatorship because in presidential systems,
Speaker 13: systems with a separate, separately elected executive, what happens is
Speaker 13: there's a conflict between the president and the Congress and
Speaker 13: there's some external crisis that requires action, and the Congress
Speaker 13: is incapable of or unwilling to respond, and then the
Speaker 13: executive takes the authority to do so without the approval
Speaker 13: of the legislature. And once that is broken, it's very
Speaker 13: hard to take back. And I think some version of
Speaker 13: that is more or less inevitable in the next five years.
Speaker 2: So I.
Speaker 13: The way I say it is like, look, we're going
Speaker 13: to get a new political system. The question is does
Speaker 13: it happen before authoritarian authoritarianism and civil war or after,
Speaker 13: and I would love for it to be before. You know,
Speaker 13: as an American, I would love to not have to
Speaker 13: experience those things, But don't. I don't think we're going to.
Speaker 13: So I think we're looking more at a you know,
Speaker 13: post dictatorship, post conflict situation and less at like, how
Speaker 13: do we organize a political revolution before?
Speaker 1: So there you have it, a few potential avenues for
Speaker 1: climate action even in the face of a worst case
Speaker 1: scenario ruling. One thing I want to emphasize here it's
Speaker 1: not that the ruling in West Virginia versus EPA doesn't matter,
Speaker 1: or that it's not justifiably anxiety inducing it is. It's
Speaker 1: more that it doesn't make the political reality of tackling
Speaker 1: client in the US that much worse than it has
Speaker 1: been for years, which isn't good news. It just means
Speaker 1: that a lot of the same fights will continue. And
Speaker 1: of course I'll be back with an update and a
Speaker 1: deep dive on that ruling as soon as it's out.
Speaker 1: That's it for this week. To read or endorse the
Speaker 1: petition and track its progress, check out cprclimate dot org.
Speaker 1: We'll bring you an update when the EPA makes a
Speaker 1: decision too. Before you exit, out of your podcast app.
Speaker 1: If you could just take a moment to rate or
Speaker 1: review the podcast, I'd really appreciate it. It helps the
Speaker 1: show reach more listeners. Thanks for that, and thanks for listening,
Speaker 1: and we'll see you next time. Drilled is an original
Speaker 1: production of the Critical Frequency Podcast Network. Our producer is
Speaker 1: Jules Bradley, our editor is Jude Joffy Block, mixing sound
Speaker 1: design and scoring by Peter Dye, and I am your
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