Democratic Senators See Writing On The Wall After Supreme Court Hears EPA Case

UNITED STATES - DECEMBER 15: Sen. Elizabeth Warren, D-Mass. (Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images)

The Supreme Court heard a bizarre case Monday that dealt with the Environmental Protection Agency’s power to regulate greenhouse gas emissions from power plants. A coalition of red states and coal companies are gesturing towards a rule that is no longer on the books — Obama’s Clean Power Plan — as a way to bring before the conservative court questions of how the EPA can act on climate. 

It’s a case where the justices handcuffing the EPA from its ability to keep some of the country’s biggest polluters from belching greenhouse gasses into the air is actually not the worst case scenario. 

Some court watchers worry that a conservative majority could also use this forum to issue a blanket ruling on agency power, one that reverberates through the entire administrative state and invites challenges to all kinds of exercises of executive branch authority. Weakening environmental protections would be one impact — but such a decision could ripple into worker safety, public health, housing disputes, and every other corner of American life that agencies shape.

And after oral arguments, the Democratic senators most invested in this case did not like what they heard. 

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“Normally, I would say that oral argument is an incomplete and possibly misleading sign of where the Court’s going,” Sen. Richard Blumenthal (D-CT) told TPM. “But in this instance, it seems they’re clearly determined to strike down a lot of good regulation.”

Blumenthal, along with Sens. Elizabeth Warren (D-MA), Sheldon Whitehouse (D-RI) and Bernie Sanders (I-VT) filed an amicus brief in support of the Biden administration’s position. 

The senators told TPM that it was the marriage of many insidious strains infecting the Court that prompted their involvement. 

Warren said it was “both halves” — the urge to protect the environment, and to beat back a coordinated assault against the administrative state. 

“The clear impact of dark money on Supreme Court appointments and the influence of right wing fringe groups was one of the factors that motivated us,” added Blumenthal.  

For Whitehouse specifically, exposing the connection between dark money and the Court has been a yearslong crusade. 

“This trumped-up challenge is one prong of a massive, anonymously-funded influence campaign by the fossil fuel industry,” he told TPM in a statement. 

Monday’s oral arguments focused on the idiosyncrasies of the case, including whether the coalition of red states and coal companies challenging the EPA have standing to do so in the first place. They aren’t actually challenging any rule or regulation, but the prospect of a hypothetical rule to regulate greenhouse gas emissions the agency may publish in the future. 

But the red states also invited the justices, quite plainly, to use the case as a canvas for broader anti-regulatory rulings — something the Democratic senators, in their brief, say would amount to “judicial usurpation of power contrary to the Constitution.” 

“If the Supreme Court truly honored the rule of law and precedent, then they would acknowledge the power of the agencies that was granted to them by Congress in order to save our environment,” Warren told TPM. “But this is an extremist Supreme Court, so I’m very worried about the outcome.”  

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