The now-famous leaked Supreme Court draft opinion indicating a possible overturn of Roe v. Wade is a cause for distress among environmental lawyers who fear a conservative ruling in the upcoming Supreme Court decision in West Virginia v. EPA. The draft opinion indicates that the conservative majority in the Court is willing to disregard long-standing judicial precedent to achieve conservative goals, which could seriously impact current climate legislation.
West Virginia v. EPA debates whether a provision of the Clean Air Act grants the Environmental Protection Agency the power to regulate greenhouse gas emissions in virtually any industry, as long as it considers cost, non-air impacts, and energy requirements. This authority gives the EPA the ability to reshape the nation’s electricity grid and decarbonize any sector of the nation’s economy – a key element of many climate policies — much to the protest of the two coal companies being represented by Virginian Attorney General Patrick Morrisey, North American Coal Corporation, and Westmoreland Mining Holdings, LLC.
The draft leak also has pressing impacts on access to abortion. You can read Kids Fight Climate Change's statement affirming the importance of gender justice and intersectionality within the climate movement.
The plaintiffs are specifically challenging the EPA’s authority to regulate greenhouse gas emissions produced by power plants, saying this power should be taken away from the agency and given to Congress. Environmental lawyers are now concerned that the leak represents a break in the trust between judges and staff of the Court, and will eliminate the possibility of cross-ideological decisions — known as “strange bedfellows alliances” — that would have created a victory for the EPA’s climate regulatory ability. Since the draft opinion was leaked, the anger on both sides of the issue has put pressure on politicians and the Federal Government as a whole for answers on the source of the leak and for legislative action surrounding abortion rights, causing the Court to remain increasingly divided.
There is also some concern over whether Massachusetts v. EPA, a landmark 2007 case that gave the EPA the authority to regulate greenhouse gasses under the Clean Air Act, is safe from being revisited by the Court. The Supreme Court leak on Monday reinforces the urgency of climate legislation and demonstrates the gravity of the November midterm elections for environmental protection.