The Supreme Court’s decision Thursday curbing the powers of unelected federal bureaucrats to regulate all of us is the second-most-important case it decided this term, after the reversal of Roe v. Wade.
The Constitution set up a system of separated powers that envisioned Congress would pass the laws, the president would administer them and the courts would interpret them. Since the New Deal, Congress has shirked its accountability by increasingly giving unelected agencies the power to make decisions of vast economic and political significance.
In West Virginia v. Environmental Protection Agency, a 6-to-3 majority ruled that from now on Congress must explicitly grant such power. The court has stopped the hell-bent expansion of the runaway bureaucracy to create its own form of laws disguised as regulations. It will be up to voters to elect people to Congress who will take back that power.
The issue before the court was whether the EPA could force coal plants to either reduce the amount of energy they produce for public use or spend billions of dollars on new facilities using alternative energy sources. Either scenario would dramatically increase the cost of energy in the name of fighting carbon emissions.
The Obama — and now the Biden — administration pursued a sweeping climate strategy in which each agency is encouraged to adopt novel interpretations of federal law to fight climate change. As Chief Justice John Roberts noted, the EPA was claiming a right to reduce emissions using methods “that Congress has already considered and rejected numerous times.” In other words, the EPA was trying to replace the Rule of Law with the Rule of Bureaucrats.
The Supreme Court moved further to stop this power grab than many observers expected. In his explanatory concurrence, Justice Neil Gorsuch laid out tests for future cases that courts can use to determine what constitutes a proper statement of congressional intent. He has effectively provided a roadmap for challenging other federal agencies on their expansive rules, whether it be requiring higher gas mileage in cars or the Federal Communications Commission’s net-neutrality regulation.
Since the spectacular failure of President Barack Obama’s cap-and-trade scheme, which failed to even get a Senate floor vote in 2010, Democrats and the environmental left have been obsessed with twisting and distorting old laws to accomplish by the back door what they could never do using legitimate constitutional approaches.
Now that the Supreme Court has started to close the door on rogue federal agencies, environmental extremists are acting like burglars who try every possible door in a neighborhood in hopes one will be unlocked.
Bill McKibben, the influential head of the climate pressure group 350.org, explains why the left has so promoted the ESG movement — which judges corporations’ performance based on environmental, social and governance metrics — to force companies to put on the straitjacket of unworkable climate controls.
“Convincing banks to stop funding Big Oil is probably not the most efficient way to tackle the climate crisis, but, in a country where democratic political options are effectively closed off, it may be the only path left,” he writes in The New Yorker.
What McKibben is saying is that because climate extremists aren’t getting their way at the ballot box, they will embrace the ESG approach, which is modeled after a union tactic called a “corporate campaign.” Under it, unions pressure firms to follow the union line or face damage to their company’s reputation and alienation from propagandized employees. Not willing to bear the immediate costs, many companies give in. After seeing Tesla dropped from “approved” lists of ESG companies, Elon Musk sadly concluded that ESG has been “weaponized by phony social justice warriors” and is now a “scam.”
Thursday’s Supreme Court decision does give hope that federal agencies can be stopped from running amok in their rule-making. The American people should decide the climate-change issue through their elected representatives in Congress, as the Constitution envisions.
The next challenge is to make sure McKibben’s prediction that “the pressure on banks, asset managers and insurance companies” to force dramatic increases in our energy costs will intimidate corporate America into letting the climate extremists have their way by entering a back door doesn’t come true.
John Fund is a columnist for National Review magazine.