Just as with abortion, our dangerous new majority Supreme Court didn't have to go beyond the case in front of it to decide a clean air case and endanger the earth. But it did.
Ruling 6-3 in West Virginia v. EPA, the court in essence took authority away from Congress by turning a congressional mandate to the U.S. Environmental Regulatory Agency on its head, rolling back the guts of fighting climate change. What's more, the court took this action at a point when we've little time left to try avoiding the worst impacts of global warming.
Please let us outline the setting. Here in Hamilton County and much of East Tennessee in late March and early April, usually rainy periods in our locale, we were under "high fire danger alerts." Tennessee icon Dolly Parton was asking for prayers to help the firefighters working to fight spreading flames in the Smokies and in East Tennessee. Meanwhile, thousands of miles away in Antarctica, the Thwaites Glacier, a frozen chunk the size of Florida and holding enough ice to raise global sea levels at least two feet, was terrifying scientists with its melting as temperatures there soared 40 to 70 degrees above normal.
A month later on May 9, the Associated Press headline in the Chattanooga Times Free Press screamed, "Earth given 50-50 chance of hitting key warming mark by 2026." It was a prediction by a team of 11 different forecast centers for the World Meteorological Organization. In case you've lost your calendar, 2026 is almost exactly three and a half years from now.
Against this backdrop, Chief Justice John G. Roberts Jr. and the other five conservatives flexed their right-wing muscle to rule that Congress didn't "speak clearly" when crafting Section 111 of the Congress-passed Clean Air Act to give EPA the authority to issue sweeping carbon regulations that would reshape energy policy - policy like limiting coal-fired and gas-fired power plants and encouraging alternative energy.
Roberts wrote: "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.' But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme."
Justice Elena Kagan, in her dissent, had a different view: "That is just what Congress did when it broadly authorized EPA in Section 111 to select the 'best system of emission reduction' for power plants.' The 'best system' full stop - no ifs, ands, or buts of any kind relevant here."
She also pointed to a portion of the law allowing the EPA to regulate pollutants that may endanger public health or welfare: "Carbon dioxide and other greenhouse gases fit that description," she wrote.
In Tennessee and in the six surrounding states served by the Tennessee Valley Authority, spokesman Buddy Eller said TVA expects the ruling will have "minimal, if any," impact on the utility. "Our decarbonization efforts are not directly connected to the Clean Power Plan."
TVA, he said, is following its own "Strategic Intent and Guiding Principles" document.
"We believe decarbonization is the future," he said. "Our carbon emissions reduction goal from 2005 levels remain the same - 70% by 2030, - 80% by 2035 and aspire to be net-zero by 2050. We've already reduced carbon emissions by 60%."
But the Southern Environmental Law Center, which regularly takes TVA to task, said the courts "hobbling" of EPA has "gravely impeded the United States' progress" to address climate change.
"We have only a brief window but today's decision torpedoes the EPA's authority," said senior attorney Frank Rambo, leader of SELC's Clean Energy and Air Program. "Of all regions of the country, the South has the most to lose from unchecked climate change. And the most to gain from an economy that relies on clean energy."
Congress's decades of laws giving agencies flexibility to respond to problems is not a one-off. EPA, like the Department of Health and others, have scientific expertise to deploy - something that Congress lacks.
"The majority today overrides that legislative choice," Justice Kagan wrote. "In so doing, it deprives EPA of the power needed - and the power granted - to curb the emission of greenhouse gases."
Some had feared the court might take away more authority, like EPA's ability to regulate greenhouse gases from vehicle tailpipes.
But that and other fails may yet emerge as conservatives plot out a larger legal battle to rein in "the administrative state."
Health privacy (with abortion), gun safety regulation, along with separation of church and state were the first targeted, but as many have posited - including Justice Clarence Thomas - it won't be the last. Think contraception, vaccination, sexual freedom.
The best news, however, is that this climate rule, like other freedoms, comes late to the party. Like TVA, America already is dumping coal and gas and looking for cleaner, cheaper alternative fuels. Hybrid and electric vehicles are continuing to gain ground. Solar power is on the rise.
The Supreme Court's emboldened conservative majority wreaked a special kind of havoc this term, but it will take more than six wingnut justices to rein in the democracy they serve.
Consumers and people who love freedom and our only one earth are on the move.