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The Supreme Court’s Big Wins for Climate and Freedom

House Natural Resources Chair Raúl Grijalva (D-AZ) offered the most telling reaction to this week’s Supreme Court climate decision when he declared the Court has “sentenced our planet to death.”

Never before has one branch of government been more upset at another branch for giving its power back. 

Rather than putting our big blue marble on death row, what the Court ruled in West Virginia v. EPA is that Congress, not the EPA, has the responsibility to regulate power plant greenhouse gas emissions.  

>>>READ: After West Virginia vs. EPA, Time for Elected Officials to Step Up

Chief Justice John Roberts wrote in the Supreme Court climate decision majority opinion, “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. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 

In other words, if Grijalva and the progressive activists to whom he is pandering honestly believe this ruling is a death sentence for the planet, Grijalva, as the chairman of the Natural Resources Committee has the power to commute that death sentence. Grijalva’s decision to release rhetorical emissions instead of doing the real work of legislating and persuading reveals the deeper fault line in American politics between the forces of authoritarianism and freedom, those who prefer top-down command and control decision-making to the messy and sometimes chaotic process of bottom-up problem-solving. 

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Cassidy Hutchinson, in her riveting testimony before the January 6 committee, offered a fitting metaphor for the past 50 years of American politics, and the Court’s recent rulings about abortion, guns and climate, when she described a rage-filled President Trump lunging at the steering wheel of his limo to get his driver to take him to the Capitol. Whether the president literally lunged for the wheel is a matter for lawyers to parse but, at a minimum, the image is an accurate figurative indictment of Trump’s actions after losing an election.  

How did we get to a point where an American president would lunge for the steering wheel of our democracy? To be clear, Trump alone is responsible for decisions to lie about the election and encourage an armed mob to head to the Capitol where police officers and others died. If nothing else, Trump should be held accountable politically by his fellow Republicans who don’t want to be part of a seditious, Violence Against Police Officers caucus. Yet, Americans on all sides should be intellectually honest enough to acknowledge the Trump phenomenon didn’t emerge from a vacuum. 

Conservatives believe progressives have spent the past 50 years lunging for the steering wheel through the courts and the administrative state. The debate on the right has been between those who say the best way to beat the left’s judicial and regulatory tyranny is to appeal to our Constitution and its framework of principled pluralism and another faction that says the only way to beat the left is to “fight” like they do. In short, the faction that believes in responding to authoritarianism with freedom – the Tom Coburn, Paul Ryan, Ben Sasse and Liz Cheney wing – lost to the Trump wing that excuses right-wing authoritarianism with “the end justifies the means” Machiavellianism that is often anti-conservative and blatantly unconstitutional.   

>>>READ: The Folly of Neoisolationism and “Dark MAGA”

On climate, the left should reflect on this history and the wise counsel of the late Supreme Court Justice Ruth Bader Ginsburg who said Roe, “seemed to have stopped the momentum on the side of change.”

Ginsburg was unambiguously pro-choice and believed abortion ought to be a right, yet she consistently cautioned her progressive allies to resist overreach and authoritarianism, a lunging for the wheel.  

“A less-encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, might have served to reduce rather than to fuel controversy,” she said. “Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures ‘toward liberalization of abortion statutes.’”

She added, “Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Smart and principled “Ginsburg” progressives see where the climate debate is headed and like its trajectory. Fewer and fewer Republicans are denying climate change is a problem and more and more are offering solutions. Because economic freedom and innovation are the answers, the solutions aren’t going to look anything like the Green New Deal. Yet, people of good faith can work together like Ginsburg and the late legendary conservative Justice Antonin Scalia, who were close friends and represented the very best of America.  

The greatest threat to momentum in the climate debate continues to be progressive authoritarianism and overreach, a lunging for the wheel and a longing for a “Climate Roe,” the illusion that judges and regulators can fix the problem once and for all. 

In her dissent in the Supreme Court climate decision, Justice Elena Kagan was dangerously and demonstrably wrong. She argued, “Members of Congress often don’t know enough – and know they don’t know enough – to regulate sensibly on an issue.”

I know from first-hand experience and observation that elected officials can acquire the necessary knowledge to legislate and conduct oversight if they make it a priority. The oversight reports of my old boss, the late Tom Coburn, are still a resource on the Hill. Other legislators like Carl Levin, John Dingell, Henry Waxman, Ted Kennedy, Orrin Hatch and others assembled superb teams of experts. When legislators decide to legislate, they can legislate. And if the problems are too complex the answer is for the federal government to do less, not more. 

While Grijalva may be eager for someone else to do his job, the next Chairman of the Natural Resources Committee, should Republicans win the House, will be Bruce Westerman (R-AK), who will happily accept the challenge. A forester by training, Westerman will have the frame of reference and judgment necessary to make complex decisions about greenhouse gas emissions. If Grijalva chooses to participate in the legislative process instead of throwing a Trump-like temper tantrum, I suspect Westerman will welcome his input.  

As we prepare to celebrate the Fourth of July, the Court and Cassidy Hutchinson, have given us an opportunity to exercise our independence and choose freedom over authoritarianism. Instead of looking to any federal agency, as a people, we have an opportunity to rediscover our own agency. Adopt a child. Plant a tree. Mentor a lonely kid. Come up with a solution and be a part of it. Top-down solutions don’t last and don’t work. Bottom-up innovators, not regulators, tend to be those who change the world. 

The views and opinions expressed are those of the author’s and do not necessarily reflect the official policy or position of C3.

Copyright © 2020 Conservative Coalition for Climate Solutions

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