[The Supreme Court, it appears, is planning to gut most of
America’s regulatory agencies in what could be the most
consequential re-write of the protective “deep state” since the
New Deal… ]
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DOES THE EPA DIE TODAY?  
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Thom Hartmann
January 17, 2024
The Hartmann Report
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_ The Supreme Court, it appears, is planning to gut most of
America’s regulatory agencies in what could be the most
consequential re-write of the protective “deep state” since the
New Deal… _

,

 

Republicans on the Supreme Court are, it appears, planning to gut most
of America’s regulatory agencies, in what could be the most
consequential re-write of the protective “deep state” since it was
largely created during the New Deal in the 1930s.

The vehicle for this radical transformation of America is a case that
will be argued today, in just a few hours, before the Court: _Loper
Bright Enterprises v Gina Raimondo
[[link removed]]._

IF THEY PULL IT OFF, THESE SIX CORRUPT REPUBLICANS ON THE COURT COULD
DESTROY THE ABILITY OF:

— the EPA to regulate pollutants,
— the USDA to keep our food supply safe,
— the FDA to oversee drugs going onto the market,
— OSHA to protect workers,
— the CPSC to keep dangerous toys and consumer products off the
market,
— the FTC to regulate monopolies,
— the DOT to come up with highway and automobile safety standards,
— the ATF to regulate guns,
— the Interior Department to regulate drilling and mining on federal
lands,
— the Forest Service to protect our woodlands and rivers,
— the FCC to protect us from internet predators,
— and the Department of Labor to protect workers’ rights.

VIRTUALLY THE ENTIRETY OF AMERICA’S ABILITY TO PROTECT ITS CITIZENS
FROM CORPORATE PREDATION THROUGH REGULATION RESTS ON WHAT’S CALLED
THE _CHEVRON DEFERENCE_ (MORE ON THAT IN A MOMENT), WHICH THE COURT
APPEARS PREPARED TO OVERTURN IN TODAY’S CASE.

Republican presidential candidate Vivek Ramaswamy says
[[link removed]] he
wants to eliminate the Department of Education “on day one” if
he’s elected president. If the Supreme Court has its way, he
wouldn’t have to bother. It’ll become impotent.

Far-right conservatives and libertarians have been working for this
destruction of agencies — the ultimate in deregulation — ever
since the first regulatory agencies came into being with the
1906 creation
[[link removed]] of
the _Pure Food and Drugs Act_, a response to Upton Sinclair’s
bestselling horror story published that year (_The Jungle
[[link removed]]_)
about American slaughterhouses and meat-packing operations.

Gutting these agencies is what Steve Bannon meant when Trump brought
him into the White House and he said
[[link removed]] one
of the main goals of that administration was to “deconstruct the
administrative state.” If there’s any coherent explanation of the
phrase “deep state” as used by Republicans, it’s our nation’s
regulatory agencies.

THE MODERN EFFORT TO DESTROY OR AT LEAST NEUTER AMERICA’S PROTECTIVE
AGENCIES BEGAN WHEN RONALD REAGAN PUT ANNE GORSUCH IN CHARGE OF THE
ENVIRONMENTAL PROTECTION AGENCY (EPA).

She directed the agency to dial back restrictions on expansion of
factories and other operations that were already polluting the
atmosphere. That provoked a challenge to the Supreme Court, _Natural
Resources Defense Council, v. Gorsuch
[[link removed]]_,
where the Court overruled the Reagan administration.

GORSUCH NONETHELESS CONTINUED HER EFFORTS TO GUT THE EPA. IN HER FIRST
YEAR HEADING THE AGENCY, THERE WAS A 79 PERCENT DECLINE
[[link removed]] IN ENFORCEMENT CASES, AND
A 69 PERCENT DROP [[link removed]] IN
CASES THE EPA REFERRED TO THE JUSTICE DEPARTMENT FOR PROSECUTION. SHE
PUSHED A 25 PERCENT CUT
[[link removed]] IN HER OWN AGENCY’S
FUNDING INTO REAGAN’S FIRST BUDGET PROPOSAL.

It took Congress years to overturn her cuts to the Clean Air Act “on
everything from automobiles to furniture manufacturers,” according
[[link removed]] to Phil Clapp, president
of the National Environmental Trust.

She took a meataxe to President Carter’s renewable energy programs
and “set solar back a decade” according
[[link removed]] to Clapp.

Gorsuch finally resigned her office to avoid prosecution for what
Newsweek described
[[link removed]] as
“a nasty scandal involving political manipulation, [Super]fund
mismanagement, perjury, and destruction of subpoenaed documents, among
other things.”

HER SON, NEIL GORSUCH, WAS DEVASTATED BY HIS MOTHER’S RESIGNATION.
IN HER MEMOIR
[[link removed]] _ARE
YOU TOUGH ENOUGH?
[[link removed]]_ SHE
TELLS THE STORY OF HOW NEIL CONFRONTED HER WHEN SHE RESIGNED:

“Neil,” she wrote, “got very upset. Halfway through Georgetown
prep and smart as a whip, Neil knew from the beginning the seriousness
of my problems. He also had an unerring sense of fairness, as do so
many people his age.

“‘You should never have resigned,’ he said firmly. ‘You
didn’t do anything wrong. You only did what the president [Reagan]
ordered. Why are you quitting? You raised me not to be a quitter. Why
are you a quitter?’

“He was really upset,” she added.

NOW, IT APPEARS, HER SON IS PREPARING HIS REVENGE.

To get there, he and the other Republicans on the Court appear
hell-bent-for-leather to turn regulatory agency rule-making
upside-down, which will please the billionaires who give them luxury
vacations, buy them homes, and pay them absurd speaking fees (and paid
Roberts’ wife over $10 million
[[link removed]]).

HERE’S HOW REGULATORY LAW — USING THE EXAMPLE OF THE EPA AND CO2
— IS SUPPOSED TO WORK (IN SUPER-SIMPLIFIED FORM):

1. CONGRESS PASSES A LAW that says, for example, that the
Environmental Protection Agency should limit the damage that
pollutants in the environment cause to the planet. Congress (the
Constitution’s Article I branch of government) defines the broad
goal of the legislation, but the Executive Branch (Article II, which
encompasses the EPA and other regulatory agencies) has the
responsibility to carry it out.

2. THE EPA, part of that Executive Branch and answering both to the
law and the President, THEN CONVENES PANELS OF EXPERTS. They spend a
year or more doing an exhaustive, deep dive into the science, coming
up with dozens or even hundreds of suggestions to limit atmospheric
CO2, ranging from rules on how much emission cars can expel to
drilling and refining processes that may leak CO2 or methane (which
degrades into CO2), etc.

3. THE EXPERTS’ SUGGESTIONS ARE THEN RUN PAST A PANEL OF RULE-MAKING
BUREAUCRATS AND HIRED-GUN RULE-MAKING EXPERTS for the EPA to decide
what the standards should be. They take into consideration the current
abilities of industry and the costs versus the benefits of various
rules, among other things.

4. After they’ve come up with those tentative regulations,
they submit them for public review and hearings. When that process is
done and a consensus is achieved, they make them into official EPA
rules, publish them, ENFORCE THEM, and the CO2 emissions begin to
drop.

THIS IS A PROCESS THAT SIMPLY COMPORTS WITH COMMON SENSE, AS THE
SUPREME COURT RULED IN 1984
[[link removed]] WHEN THEY
ESTABLISHED WHAT’S CALLED THE “CHEVRON DEFERENCE” TO LEGITIMIZE
AND DEFEND OUR REGULATORY AGENCIES.

That doctrine — established by the Supreme Court and reflecting a
century of the will of Congress and presidents of both parties who
signed regulatory agencies into existence — says that when a
regulatory agency does its due diligence and determines reasonable
rules for a substance or behavior they have the legal authority to
regulate, the courts should “defer” to the judgment of the agency.

CONGRESS PASSES LAWS THAT EMPOWER REGULATORY AGENCIES TO SOLVE
PROBLEMS, THE AGENCIES FIGURE OUT HOW TO DO THAT AND PUT THE RULES
INTO PLACE, AND THE SOLUTIONS GET ENFORCED BY THE AGENCIES. AND WHEN
SOMEBODY SUES TO OVERTURN THE RULES, IF THE COURTS DETERMINE THEY WERE
ARRIVED AT THROUGH A REASONABLE PROCESS WITHOUT CORRUPTION, THOSE
RULES STAND.

Then came a group of rightwing Supreme Court justices — including
Neil Gorsuch — who overturned rules made by the EPA about CO2
emissions from power plants in their June, 2022 _West Virginia v EPA
[[link removed]]_ decision.
This set up today’s arguments.

THEIR RATIONALE WAS THAT BECAUSE THE LEGISLATION THAT CREATED THE EPA
DOESN’T SPECIFICALLY MENTION “REGULATING CO2,” THE AGENCY LACKS
THAT POWER. AND NOW IT HAS LOST THAT POWER, THE RESULT OF THAT _WEST
VIRGINIA V EPA _DECISION A YEAR-AND-A-HALF AGO.

The coal-, oil-, and natural-gas-fired power plant industry has been
popping champagne corks for almost two years now, as CO2 levels
continue to increase along with the temperature of our planet.

In addition to Gorsuch, the Court’s decision-makers in _West
Virginia v EPA_ included Amy Coney Barrett whose father was a lawyer
[[link removed]] for
Shell Oil for decades, and John Roberts, Samuel Alito, and Brett
Kavanaugh who are all on the Court in part because of support from a
network
[[link removed]] funded
by fossil fuel billionaires and their industry (among others).

And, of course, Clarence “on the take” Thomas, who supported
the _Chevron deference_ 15 years ago but in 2020 wrote
[[link removed]]:

“_Chevron_ compels judges to abdicate the judicial power without
constitutional sanction. … _Chevron_ also gives federal agencies
unconstitutional power.”

GIVING US A CLUE TO HOW THIS WILL PROBABLY GO DOWN, ALL SIX
REPUBLICANS ON THE COURT VOTED TO GUT THE EPA’S ABILITY TO REGULATE
CO2; ALL 3 DEMOCRATIC NOMINEES OPPOSED THE DECISION.

Justice Elena Kagan wrote that the Court:

“[D]oes not have a clue about how to address climate change...yet it
appoints itself, instead of congress or the expert agency...the
decision-maker on climate policy. I cannot think of many things more
frightening."

THEIR RULING WAS, ESSENTIALLY, THAT ALL OF THAT RESEARCH INTO THE
SPECIFICS OF ANTICIPATED REGULATIONS — ALL THOSE HUNDREDS OF
SCIENTISTS, MILLIONS OF PUBLIC COMMENTS, AND HUNDREDS OF THOUSANDS OF
SCIENCE-HOURS INVESTED IN UNDERSTANDING PROBLEMS AND COMING UP WITH
WORKABLE SOLUTIONS — MUST BE DONE BY CONGRESS RATHER THAN
ADMINISTRATIVE REGULATORY AGENCIES.

As if Congress had the time and staff. As if Congress was stocked with
scientific experts, a much larger budget, and had millions of hours a
year for hearings. As if Republicans in the pockets of fossil fuel
billionaires wouldn’t block any congressional action even if it did.

Gorsuch, _et al_, succeeded in the _West Virginia v EPA _case, but
it was narrowly focused on CO2.

IN THE CASE BEING ARGUED TODAY, HOWEVER, THE COURT IS EXPLICITLY
PREPARING TO EXPAND THAT VICTORY BY BLOWING THE ENTIRE _CHEVRON
DEFERENCE_ OUT OF THE WATER, THUS ENDING OR SEVERELY LIMITING MOST
PROTECTIVE GOVERNMENT REGULATIONS IN AMERICA AND OPENING THE DOOR TO
COURT CHALLENGES TO EVERY REGULATORY AGENCY LISTED AT THE OPEN OF THIS
ARTICLE (AND MORE).

They’re saying, essentially, that the EPA (and any other regulatory
agency) can’t do all the steps listed above: instead, that detailed
and time-consuming analysis of a problem, developing specific
solutions, and writing specific rules has to be done, they say, by
Congress itself.

Specifically, this case the Court is hearing today — _Loper Bright
Enterprises v Gina Raimondo
[[link removed]] —_ has
to do with whether or not fishermen should have to pay fees that help
cover the cost of the agency that regulates them.

But when you look at the briefs being filed by billionaire- and
corporate-funded rightwing groups like the CATO Institute
[[link removed]], Competitive
Enterprise Institute
[[link removed]], Pacific
Legal Foundation
[[link removed]], Independent
Women’s Law Center
[[link removed]], Southeastern
Legal Foundation
[[link removed]], Christian
Employer’s Alliance
[[link removed]], National
Right to Work Legal Defense Foundation
[[link removed]], Advancing
American Freedom
[[link removed]],
and the Buckeye Institute
[[link removed]],
you find the real goal of this litigation.

CATO, FOR EXAMPLE, WRITES
[[link removed]]:

“[I]t is now clear that Chevron deference is unconstitutional and
ahistorical. Over the past forty years and counting, it has wreaked
havoc in the lower courts upon people and businesses.”

COMPETITIVE ENTERPRISE WRITES
[[link removed]] OF
THE NATIONAL MARINE FISHERIES SERVICE:

“The agency lacks inherent legislative power: it may only use the
powers that Congress gives it. … Only Congress can decide if a power
given to it by the Constitution should be exercised. … The
agency’s attempt to exercise this never- assigned power not only
goes beyond the authority Congress gave it; it goes beyond any
authority that Congress could legitimately give it.”

PACIFIC LEGAL FOUNDATION CUTS RIGHT TO THE HEART OF THE ABILITY OF
AGENCIES TO REGULATE ANYTHING, SAYING
[[link removed]] THE
CASE TURNS ON:

“Whether the Court should overrule _Chevron_…”

THE BUCKEYE INSTITUTE WRITES
[[link removed]] THEY’RE
SUBMITTING THEIR _AMICUS_ BRIEF TO THE COURT:

“[T]o speak on behalf of the thousands of small businesses concerned
with agency aggrandizement of power through _Chevron deference_…”

ON THE SIDE OF YOU, ME, AND MOST OTHER AVERAGE AMERICANS WHO JUST WANT
CLEAN AIR AND WATER, SAFE DRUGS AND CARS, AND REASONABLE PROTECTIONS
IN THE WORKPLACE, THE BIDEN ADMINISTRATION HAS STEPPED UP.

In defense of America’s regulatory agencies, the federal
government’s brief 
[[link removed]]filed
with the Court lays out what’s at stake:

“Petitioners bear an especially heavy burden in asking this Court to
overrule _Chevron_, which stands at the head of ‘A LONG LINE OF
PRECEDENTS’ REACHING BACK DECADES. The Court
in _Chevron _described its approach not as an innovation, but as the
application of “well-settled principles” concerning the respective
roles of agencies and courts in resolving statutory ambiguities.

“FEDERAL COURTS HAVE INVOKED _CHEVRON _IN THOUSANDS OF REPORTED
DECISIONS, AND CONGRESS HAS REPEATEDLY LEGISLATED AGAINST ITS
BACKDROP. REGULATED ENTITIES AND OTHERS ROUTINELY RELY ON AGENCY
INTERPRETATIONS THAT COURTS HAVE UPHELD UNDER
THE _CHEVRON _FRAMEWORK.

“By centralizing interpretive decisions in agencies supervised by
the President, _Chevron _also promotes political accountability,
national uniformity and predictability, and it RESPECTS THE EXPERTISE
AGENCIES CAN BRING TO BEAR in ad- ministering complex statutory
schemes.

“Petitioners offer no persuasive ‘special justification’ for
overruling _Chevron_, let alone the type of ‘particularly special
justification’ that would be required to OVERTURN SUCH A DEEPLY
INGRAINED PART OF ADMINISTRATIVE LAW.

“Petitioners principally contend that _Chevron _improperly
transfers the authority to ‘say what the law is’ from the Judicial
Branch to the Executive Branch. But this Court has explained that
the _Chevron _framework rests on a presumption that ‘a statute’s
ambiguity CONSTITUTES AN IMPLICIT DELEGATION FROM CONGRESS TO THE
AGENCY to fill in the statutory gaps.’ (emphasis mine)

THIS COULD BE THE BIG ENCHILADA, THE CASE THAT FUNDAMENTALLY
TRANSFORMS AMERICA AND AMERICAN GOVERNMENT FROM A MODERN,
WELL-FUNCTIONING NATION INTO A THIRD-WORLD BACKWATER WHERE MASSIVE
CORPORATIONS AND THE BILLIONAIRES THEY MADE RICH, INSTEAD OF _WE THE
PEOPLE_ THROUGH ELECTED REPRESENTATIVES, SET THE RULES. IT’S
CORPORATE AMERICA’S DREAM.

It could fulfill Bannon’s and Trump’s promise to dismantle — or
at least eviscerate — most of America’s regulatory agencies,
leaving us all subject to the tender mercies of the country’s CEOs.

Several groups have called on Gorsuch to recuse himself
[[link removed]] from
the case because one of his friends and patrons is a billionaire
who’ll profit greatly from the destruction of our regulatory
agencies. Not to mention fulfilling his mother’s legacy.

So far, though, he doesn’t seem to care
[[link removed]] about
the apparent conflict of interest: the Republicans on this Court seem
incapable of feeling shame or behaving ethically.

Keep an eye on this case and pay attention to the reporting on
today’s arguments before the Court. Knowing what’s coming down the
road — and why, and from whom — may well be vital for those of us
concerned with the future of our country and our children’s safety.

_Thom Hartmann is the NY Times bestselling author of 34 books in 17
languages & nation's #1 progressive radio host. Psychotherapist,
international relief worker. Politics, history, spirituality,
psychology, science, anthropology, pre-history, culture, and the
natural world._

* Environmental Protection Agency
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* U.S. Supreme Court
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* Deep State
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* legal precedent
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