These 5 words from the U.S. Supreme Court will live in infamy

These 5 words from the U.S. Supreme Court will live in infamy

July 17, 2022 0 By Ellen Novack

As Roberts opined, in the Court’s bold, black Century Schoolbook font:

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.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d).

“The crisis of the day” is an interesting choice of words. It’s interesting, for example, because the language Roberts decided to quote was that of former Justice Sandra Day O’Connor. Her opinion in the New York v. United States case he cites ultimately addressed the ability of Congress to compel states to provide adequate means and facilities to dispose of low-level radioactive waste. A “pressing national problem,” as O’Connor herself acknowledged at the time, but one hardly as existentially dire as combating climate change. It’s also interesting that the same 1992 New York v. United States case—the same case Roberts now uses to justify gutting the authority of a federal agency explicitly tasked with “protecting the environment” in favor of direct, seemingly hand-held Congressional direction under the new and whimsical “major questions” doctrine—was actually a decision denying the power of Congress to invoke such a policy.

As O’Connor wrote, well before “climate change” was even recognized as a term, “Some truths are so basic that, like the air around us, they are easily overlooked … But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

(emphasis supplied)

These ironies and rhetorical flourishes are all interesting, if disconcerting, particularly coming from O’Connor, who famously reacted in horror when it appeared—fleetingly—that her successor might be chosen by Al Gore rather than George W. Bush. But ultimately they’re not really important. What’s important are the real-world consequences to the rest of us of what these people write and otherwise decree as the “law.”

The fire season in California began a full two months early this year. As of this week, there were 500 fires burning in Alaska, with more acreage burned in June than in the entirety of 2020 and 2021. More than 98% of the American Southwest was in drought this week, with reservoirs at unprecedented record lows in Nevada, California, New Mexico, and the entire Colorado River basin, all stemming from the worst mega-drought in 1200 years. Last month, from the Carolinas to Chicago, days of unprecedented triple-digit heat became the “new normal.”

TOPSHOT - Flames surround Lake Berryessa during the LNU Lightning Complex fire in Napa, California on August 19, 2020. - Thousands of people fled their homes in northern California on August 19 as hundreds of fast-moving wildfires spread across the region, burning houses and leading to the death of a helicopter pilot. (Photo by JOSH EDELSON / AFP) (Photo by JOSH EDELSON/AFP via Getty Images)
Napa California, 2020

But perhaps Texas provides the most apt illustration for those weary of this “crisis of the day.”

Described as suffering the highest “exceptional” drought conditions, the ranchers of east Texas are selling off their cattle, the cost of hay has skyrocketed in central Texas, and crop and livestock losses in West Texas are tracking to exceed the worst prior drought in the state’s history. San Antonio had 17 days of triple-digit heat in June; the norm is two. And as Ronald Brownstein, writing for The Atlantic, points out, “models prepared for the latest U.S. national-climate assessment forecast that the average number of 100-degree days in Texas could triple from about 40 a year over the past decade to 120 annually toward the end of this century if carbon emissions are not curtailed.”

The hurricane season in the U.S. is projected to be worse in 2022 than in 2021, in fact making it “the seventh consecutive above-average hurricane season,” although perhaps we should be grateful for last year, which only the “fourth costliest hurricane season on record.” Higher surface water temperatures and other climatic impacts of global warming are believed to have increased the intensity of hurricanes and cyclones on a global scale.

And as reported last May, by Christopher Flavelle of The New York Times:

Wildfires are bigger, and starting earlier in the year. Heat waves are more frequent. Seas are warmer, and flooding is more common. The air is getting hotter. Even ragweed pollen season is beginning sooner.

Climate change is already happening around the United States, the Environmental Protection Agency said on Wednesday. And in many cases, that change is speeding up.

The freshly compiled data, the federal government’s most comprehensive and up-to-date information yet, shows that a warming world is making life harder for Americans, in ways that threaten their health and safety, homes and communities.

And the fact that the vast majority of Americans know next to nothing of what occurs outside our borders doesn’t negate the fact that yes, global warming is really global. In fact, it even applies to people who speak the same language as Americans!

Here is a dire prognosis this week from the United Kingdom, for example. It’s not clear which is scarier: the meteorologists’s warnings or the sheer denial exhibited by his dismissive interviewers.

COLUMBIA, SC - OCTOBER 5:  Matt Talley contacts a neighbor before taking a canoe to investigate his home following flooding in the area October 5, 2015 in Columbia, South Carolina. The state of South Carolina experienced record rainfall amounts over the weekend which stranded motorists and residents and forced hundreds of evacuations and rescues.  (Photo by Sean Rayford/Getty Images)
Columbia, South Carolina, 2015

But again, why should we be be so concerned about the mere “crisis of the day?” Seriously, the Court, in its (newly inspired) “originalist” zeal, punted to a permanently and irredeemably politically polarized Congress, in lieu of heeding the federal agency explicitly created to address the country’s environmental health. So shouldn’t we, in deference to their accumulated judicial knowledge, at least try to take the longer view? The world of 2035 will certainly prove out their wisdom that this “climate change” bric-a-brac  is simply “the crisis of the day,” won’t it?

Well, won’t it?

Perhaps we should ask veteran climate journalist David Wallace-Wells, author of the popular 2017 essay titled “The Uninhabitable Earth.”

It is, I promise, worse than you think. If your anxiety about global warming is dominated by fears of sea-level rise, you are barely scratching the surface of what terrors are possible, even within the lifetime of a teenager today. And yet the swelling seas — and the cities they will drown — have so dominated the picture of global warming, and so overwhelmed our capacity for climate panic, that they have occluded our perception of other threats, many much closer at hand. Rising oceans are bad, in fact very bad; but fleeing the coastline will not be enough.

[…]

Over the past few decades, the term “Anthropocene” has climbed out of academic discourse and into the popular imagination — a name given to the geologic era we live in now, and a way to signal that it is a new era, defined on the wall chart of deep history by human intervention. One problem with the term is that it implies a conquest of nature (and even echoes the biblical “dominion”). And however sanguine you might be about the proposition that we have already ravaged the natural world, which we surely have, it is another thing entirely to consider the possibility that we have only provoked it, engineering first in ignorance and then in denial a climate system that will now go to war with us for many centuries, perhaps until it destroys us.

I dunno. Sounds a bit worse than “the crisis of the day.” Further into his essay, Wallace-Wells discusses the coming food shortages, plagues, unbreathable and polluted air, poisoned and acidified oceans, perpetual wars over scarce resources, and worldwide economic collapse—all which are certain to occur if the world continues on its current heedless trajectory, treating manmade climate change as an issue that will simply resolve itself. His message, just like Justice Roberts’, is equally pithy and unsparing: It won’t.

But of course, what the Supreme Court actually did was try to wash its hands of any blame for the coming catastrophe it just worsened by orders of magnitude—by holding that the Constitution somehow provides that only Congress can authorize such “major” questions, especially questions implicating the profits and continued existence of the fossil fuel industry, to be addressed. Strange, then, that however hard we strain our eyes, we can discern no reference to any “major questions” doctrine in that old piece of parchment. This Court, however, seems confident that future Republican Majority Leader Marjorie Taylor Greene and all her gerrymandered ilk in the Republican Party will fairly leap to the challenge of stopping the planet from turning into a living hell.

But of course, as Brownstein’s Atlantic piece observes, that will simply never happen:

That’s not only because of the Supreme Court but also because of the resistance to sweeping legislation in the Senate from every Republican as well as Democratic Senator Joe Manchin, who represents one of the top coal-producing states, West Virginia. Adding to the strain: The states most integrated into the existing fossil-fuel economy—almost all of them controlled by Republicans—are escalating their efforts to block action on climate change from the federal government and even the private sector.

So this is the way it plays out. Ten, 20, 30 years from now, long after Clarence Thomas’ harassing days are over, long after Brett Kavanaugh has sipped his last beer, and long after Amy Coney Barrett finally realizes that her imaginary white Jesus is never showing up to save her and her church friends from the “Tribulation,” those of us still around will be staring out at the bleak, heat-ravaged landscape, cursing the memory of John Roberts’ words. Every time a town ends up underwater, every time a power grid collapses from the heat, every time crops fail, or the heat outside becomes unlivable, and the air from the fires just burns out our lungs, we can look to those five little words for our cold comfort.

Because, after all, it was only “the crisis of the day.”



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