0:00:00.4 Speaker 1: We'll hear argument this morning in case 20-1530, West Virginia versus the Environmental Protection Agency, and the consolidated cases.

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0:00:12.2 Leon Neyfakh: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about West Virginia v. EPA. In this case, the Supreme Court took up whether or not the EPA has the right to favor cleaner energy sources under the Obama Administration's Clean Power Plan.

0:00:33.3 Rhiannon Hamam: Kind of like the quirky thing about this is, it's connected to policies that are not even in place right now, right?

0:00:40.8 Michael Morbius: Right. Exactly.

0:00:42.1 Leon Neyfakh: The policy was immediately challenged in Court by the energy lobby, and when the Trump administration came into office, it was abandoned. The Court heard the case anyway, despite the issue being moot, and ruled against the EPA. This is 5-4, a podcast about how much the Supreme Court sucks.

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0:01:07.2 Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have washed away our civil rights, like the ocean will wash away our beachfront properties. I'm Peter. I'm here with Rhiannon.

0:01:20.2 Rhiannon Hamam: Hey, hello.

0:01:21.3 Peter Shamshiri: And Michael.

0:01:22.2 Michael Morbius: Hey, everybody. Yeah, I like to imagine that if I do have kids one day, I can take them snorkeling by my old house. [chuckle] You know?

[laughter]

0:01:34.0 Rhiannon Hamam: Because Miami will be underwater? [laughter]

0:01:35.5 Michael Morbius: Yeah, Miami, all of South Florida will be underwater. But it will be a sick dive, it'll be, yeah.

0:01:39.8 Rhiannon Hamam: Yeah, you'll be snorkeling and seeing high-rise buildings. [laughter]

0:01:42.8 Michael Morbius: Yeah, it'll be dope.

[chuckle]

0:01:46.2 Peter Shamshiri: Today's case, West Virginia v. EPA. This is a case about the steps that the EPA, the Environmental Protection Agency, can take to mitigate climate change. There was an EPA regulation proposed by the Obama Administration in 2015 that would reduce carbon emissions through what's called "generation shifting". Generation shifting is essentially a way for states to prioritize greener energy sources within their energy grid by shifting energy production away from high-emission plants and toward low-emission plants. So just to give a highly over-simplified example, if your energy grid had a coal plant and then a wind farm, what you would do is structure it so that all of your energy production would first come from the wind farm, and only once had you maxed that out, would it come from the coal plant. It's essentially just a way of prioritizing greener energy sources within your energy grid.

0:02:47.6 Rhiannon Hamam: Yeah, exactly.

0:02:48.5 Michael Morbius: Now, that said, the technicalities of the regulation aren't super important to understanding this case. Because what it's really about is the Court arming itself with a method for attacking the administrative state as it deems fit, and ignoring the will of Congress and the text of the laws in the process. Rhi, you wanna give the background a whirl here?

0:03:13.1 Rhiannon Hamam: I would absolutely love to. Thank you, Peter. First of all, what I wanna say is this case, even though it has to do with an Obama-era regulation that was proposed at the EPA, this case did come down just a few weeks ago, this term. So yeah, let's talk background. In 2015, like Peter said, the EPA under the Obama Administration proposed basically a new set of rules called the "Clean Power Plan". This plan was designed to address carbon emissions from power plants that are fueled by coal and natural gas. So under this plan, the EPA set emissions limits on these plants and decided on the best methods to achieve those limits. Now, one of these methods, for example, was for coal-powered plants, it was called "heat rate improvements". This was basically a set of standards, like for practices, that those plants could undertake to burn coal in a cleaner way. Now, the important thing to note here is that heat rate improvements are source-specific, it's regulation of emissions at the source, on a power-plant-by-power-plant basis, and it applies to one industry. According to the Supreme Court, it applies just to those coal-fired power plants.

0:04:25.5 Rhiannon Hamam: So the Supreme Court doesn't have a problem with that methodology, right? But another method that the Clean Power Plan proposed for achieving the emissions limits for power plants was called "generation shifting." Basically, this means shifting the generation of electricity to cleaner energy sources like wind and solar, and in some cases, it was just shifting from coal-powered plants to natural gas-powered plants 'cause those are cleaner sources. So a power plant could implement this generation shifting model in a few different ways. Basically, the power plant industry had some options. Each power plant could reduce its own production of electricity, or it could build or invest in a new or existing natural gas plant or a wind farm or a solar installation, for example, or lastly, it could purchase emissions credits. So when a power plant would take any of these steps, it would be towards this bigger plan of implementing a sector-wide shift in electricity production from coal to cleaner and renewable energy sources.

0:05:33.4 Rhiannon Hamam: So let's talk really quickly though about an important point. Let us note that the Clean Power Plan was literally never in effect. The Supreme Court blocked immediate implementation of the plan in 2016, and then when the Trump administration took over, they repealed the plan themselves. They're not gonna implement that. So what's more, the metric set by the EPA in the Clean Power Plan have literally already been met. So even if it were implemented today, these power plants would have to do literally nothing. I think it's important to just highlight this up top because it's important that the Supreme Court is inserting itself here in a case that is literally moot. There is no controversy. There is no case here.

0:06:18.9 Michael Morbius: Right.

0:06:20.0 Peter Shamshiri: So let's talk about the law. And the fundamental question here is, does the EPA have the authority under the Clean Air Act to pass this regulation? The Clean Air Act gives the EPA authority to implement a system of emission reduction for power plants. In 2015, the Obama Administration proposes this plan, and it includes this generation shifting idea, which prioritizes greener energy sources within the energy grid. Never actually implemented, like Rhi just said, but in 2019, the Trump administration proposes their own regulation, which includes a bunch of industry-friendly bullshit. It also takes the position that the CPP, the Clean Power Plan, the Obama Administration rule exceeded the EPA's authority. The basic argument, which re-hinted at, is that the Clean Air Act authorizes the EPA to regulate only individual plants, whereas generation shifting is sort of like an energy industry-wide regulation that regulates the distribution of power across the grid. Now, to be clear, there's no basis in the text of the Clean Air Act for this distinction, but we'll get to that in a bit. The Trump Administration's interpretation gets challenged and eventually winds its way to the Supreme Court, and in a six to three decision, authored by the bad guy from FernGully, the Supreme Court sides with the Trump administration.

[laughter]

0:07:53.2 Rhiannon Hamam: His name was Hexxus, Peter.

0:07:55.6 Peter Shamshiri: How do you remember that?

0:07:57.2 Rhiannon Hamam: You know, some of you were not raised on FernGully and it shows.

[laughter]

0:08:01.8 Peter Shamshiri: I remember being very young and very scared of Hexxus in FernGully. Very scary dude.

0:08:06.0 Rhiannon Hamam: Yeah. Yeah. Yeah, climate change is fucking scary.

0:08:10.1 Michael Morbius: I don't remember FernGully that well, to be honest, which I should.

0:08:13.8 Peter Shamshiri: It's a classic. You should revisit.

0:08:14.6 Michael Morbius: Actually have a family member who worked on it, so I should.

0:08:18.5 Peter Shamshiri: So, talk about the legal arguments made in the opinion a bit. And first we should talk about mootness, and Rhi just mentioned it, but it's worth going over this a bit here.

0:08:28.6 Rhiannon Hamam: Yeah, yeah.

0:08:29.2 Peter Shamshiri: Mootness is the idea that if an issue has been functionally resolved, the court should not hear the case, right? There's no case anymore. There's no dispute. Like if I'm suing Michael because he owes me $1000, but then he pays me the $1000, the case is moot, right?

0:08:45.4 Rhiannon Hamam: No need for a lawsuit.

0:08:46.7 Peter Shamshiri: Issue resolved.

0:08:47.9 Rhiannon Hamam: Yeah.

0:08:47.9 Michael Morbius: Yeah.

0:08:48.5 Peter Shamshiri: Now, similar to the concept of standing, which we've talked about here quite a bit, our position is that, generally speaking, mootness is sort of a bullshit doctrine, too flexible to be useful in most cases. But to the extent it means anything at all, this case should have been dismissed as moot, right?

0:09:09.0 Michael Morbius: Yes.

0:09:09.4 Rhiannon Hamam: There's nothing to decide.

0:09:11.0 Michael Morbius: At all.

0:09:11.2 Peter Shamshiri: Right. I mean, the Clean Power Plan was never in effect, there is no plan to put it into effect. All of the emissions metrics have been met, so even if you put it into effect, it would not create any obligations on anyone. It is quite literally nothing more than words on a piece of paper at this point.

0:09:30.4 Michael Morbius: Mm-hmm.

0:09:30.9 Peter Shamshiri: The only reason to hear this case is to use it as an excuse to attack the administrative state. So on to that, what's important to understand here is that there is a long-standing rule in the law where courts defer to administrative agencies' interpretation of statutes. In other words, Congress passes laws that delegate authority to administrative agencies, agencies then interpret those laws to pass regulations. So courts are supposed to defer to agencies in how they interpret those statutes, because the agencies have all the relevant expertise and courts do not, right?

0:10:07.5 Rhiannon Hamam: Right.

0:10:07.6 Michael Morbius: Mm-hmm.

0:10:08.0 Peter Shamshiri: This is known as Chevron Deference, named after a case from the '80s, and it has long been a thorn in the side of Conservatives who would have, of course, liked to pare back the scope of administrative agencies' power because they hate regulations, right?

0:10:23.5 Rhiannon Hamam: Yeah, they don't like rules.

0:10:25.0 Peter Shamshiri: Well, they don't like these types of rules.

0:10:27.1 Rhiannon Hamam: Right, yeah. [laughter] Yeah, good point.

0:10:30.3 Peter Shamshiri: So what the Roberts Court has done is sort of carve out a huge exception to this tradition of deference called the "major questions doctrine". We've talked about this before, but essentially, the argument goes, if the issue is one of, "vast economic and political significance, a so-called major question, then the Court will not defer to the agency, but will instead do a strict analysis of the agency's power." So here they say that the question of emissions regulations is a major question, right? It's a big, important question, and they will not defer to the EPA's interpretation. Now, worth noting, there was some discussion, I think, an oral argument, where the argument was made like, "Is generation shifting really an issue of vast political and economic significance?" And I believe it was Alito who was sort of like, "Well, maybe not in and of itself, but the sort of broader question of whether you can do these industry-wide regulations is a major question," which is sort of another way of saying like, "Well, no, it's not a major question, but what if it was?" [chuckle] Right?

0:11:44.7 Rhiannon Hamam: Right, right. But let's just say it is, so that we can rule on this. Right.

0:11:46.9 Michael Morbius: That's right. That's right. Yeah, which I think really gets to how fuzzy the major questions doctrine is. And by fuzzy, what I mean is bullshit, right? How bullshit it is. This is a doctrine that only has use when the statute clearly allows the agency to do what the agency is doing, because if there's ambiguity about that, like if it's not clear, the Court can rely on that. Instead, they have to rely on this stupid doctrine that they made up.

0:12:23.8 Peter Shamshiri: Right. There are other doctrines that can sort of, not get around deference, but in situations where the delegation of authority from Congress to agencies is not at all clear, right? It's really, genuinely questionable, the Court can already deal with that.

0:12:40.8 Rhiannon Hamam: Yeah, just basic statutory interpretation, right?

0:12:43.9 Michael Morbius: Exactly. Normal statutory interpretation, they can say, "We've read the statute and it does not give you this authority," right? The problem here is that the statute just does. The statute does, it says that the EPA has to come up with the best system for regulating emissions. "System" is a word they use.

0:13:06.4 Peter Shamshiri: Right.

0:13:06.9 Michael Morbius: There's sort of no two ways about this. Any normal reading of the statute demands that the Clean Power Plan is just well within EPA's powers, their wheelhouse, they do stuff like this. Cap-and-trade is a normal part of their powers, this is all very just ordinary. It's hard to emphasize.

0:13:32.0 Rhiannon Hamam: Yeah, yeah.

0:13:33.2 Peter Shamshiri: Yeah.

0:13:33.7 Michael Morbius: And so, yeah, the major questions doctrine is the Conservatives' way of getting around that, of saying, "Well, but we don't like that." That's the only role it has to play, is when the statute authorizes agency action that the Conservatives do not like, they use this made up doctrine to say, "Well, no, we're gonna rewrite the statute."

0:13:53.9 Rhiannon Hamam: Yeah. Exactly.

0:13:56.3 Peter Shamshiri: And we talked about this in past major questions cases from the past year, but could there be a more obviously fake doctrine? Like, "Okay, we'll defer to agencies, unless it's an issue of vast political and economic significance." What does that mean? Fuck should I know. Who could possibly know what that means?

0:14:16.7 Rhiannon Hamam: Right, "Whatever I say it means," exactly. And see how the interplay between the different branches of government is happening. The Supreme Court is literally saying, "If this is an important question to us, we're inserting ourselves here," right?

0:14:30.0 Peter Shamshiri: Right.

0:14:30.1 Michael Morbius: Right.

0:14:30.6 Rhiannon Hamam: If it thinks that a statute is big enough, important enough, monumental enough, sweeping enough, well, that's when this self-important Supreme Court says, "Oh, we'll step in," right?

0:14:40.3 Peter Shamshiri: Right. This is a question for the Supreme Court.

0:14:43.0 Rhiannon Hamam: Exactly, yeah. "We gotta figure this one out for everybody."

0:14:46.6 Michael Morbius: I think it's worth noting, the Clean Air Act deals with major questions because pollution and climate change are major issues, which is why it delegated massive power to the EPA.

0:15:00.0 Rhiannon Hamam: Exactly.

0:15:00.3 Peter Shamshiri: Yeah. It's also why Congress passed a law, right?

0:15:03.4 Michael Morbius: Yeah, Congress definitely thought this was a major question. That's why they did this. That's why they gave the EPA power to do these things. It's crazymaking. It's absolutely crazymaking.

0:15:17.1 Peter Shamshiri: It's so fucking stupid. Alright, so that is how the Court gets around having to defer to the EPA here, but we still need to interpret the statute, right? We're just not deferring to them when we do. So the statute seems to grant the EPA broad authority to implement the best system of emission reduction. The EPA thought that this generation-shifting scheme was the best system, and the majority doesn't really dispute that conclusion, right?

0:15:46.7 Rhiannon Hamam: Right, right. Yeah.

0:15:47.5 Peter Shamshiri: So that should be that. But instead, what they do is they say, "Well, look, this generation-shifting thing, it's like a bit newfangled, don't you think? So even if it fits within the clear language of the law, we don't really think that that's what Congress meant when they passed the Clean Air Act."

0:16:06.3 Rhiannon Hamam: Literally, like, "Get off my lawn, jurisprudence." [chuckle]

0:16:08.6 Peter Shamshiri: Right. So even though the Clean Air Act gives the EPA broad authority to regulate emissions, and indeed, even though the intent of the law is to grant flexibility to the EPA to handle new concerns and new technologies, the Court says like, "Well, sure, but in our opinion, it shouldn't cover this." And that's basically what their analysis is. The Court seems to endorse a new test for these sort of major question cases. And the test, and I'm not joking, is whether the regulation, "raises an eyebrow." In other words, whether your gut instinct is that the EPA should be able to do that. That's the actual test that the Court embraces here, like the "raising an eyebrow" language is from the opinion. [chuckle]

0:17:00.3 Rhiannon Hamam: Right. Well, what's so interesting also is John Roberts is basically saying, "If the regulation raises my eyebrow." Someone who is not an environmental scientist, somebody who does not work at the EPA and has seen all of this evidence, all of this testing, all of the reasons why they promulgated these new regulations, but just, "If it raises my eyebrow, that's the test."

0:17:22.5 Peter Shamshiri: Right. So I think it's worth talking about the past year or so of Supreme Court jurisprudence, which has suddenly seen three prominent major questions cases, all of which we've covered. The first was the Eviction Moratorium case from last year, where the CDC had put out a regulation that halted evictions during COVID, right? And that gets challenged and this whole raising an eyebrow thing comes into play, where the Court is like, "Well, is the CDC really regulating the nation's housing market to this extent? Does that really make sense, or does that sort of like, on a gut level, feel a little bit broader than what the CDC's role is?"

0:18:11.6 Michael Morbius: Does that sound right?

0:18:13.3 Rhiannon Hamam: Right.

0:18:13.9 Peter Shamshiri: I don't agree with that, certainly not during a pandemic, nor do I believe that the scope of agency authority is determined by what you think the vibes of the agency are, if you're John Roberts. But I do think that there's sort of like a natural appeal to that argument in the case of the CDC implementing an eviction moratorium, right? Where this is obviously something where they're in some way outside of their zone.

0:18:40.1 Michael Morbius: Right.

0:18:40.6 Peter Shamshiri: A few months later, you get the OSHA Vaccine Mandate. And the court says, "Well, we don't think that OSHA should be able to regulate vaccines in this way, because vaccines are sort of like... "

0:18:54.7 Michael Morbius: Public Health.

0:18:55.7 Peter Shamshiri: Outside of the workplace. They're not really related to the workplace enough for OSHA to be regulating it. And that raises an eyebrow. On a gut level, we believe that it's outside of OSHA scope. And all of a sudden you're getting into much greater territory where you're like, "Well, is it really?" And then finally, we arrive at a place where they're like, "And also we don't think the EPA should be able to regulate the energy industry." [laughter]

0:19:22.6 Rhiannon Hamam: Right.

0:19:25.7 Speaker 1: Emissions from power plants, like the core mission of the EPA. [laughter]

0:19:28.2 Rhiannon Hamam: Right. It's this weird thing of prioritizing the conservative justices, gut level over everybody else's gut level. Like everybody has a gut level instinct and a gut level plan about what we're doing here, and the people at the EPA, the people in the Obama administration didn't have a gut-level reaction that this was beyond the scope of the EPA, right? It's such a weird doctrine.

0:19:55.2 Peter Shamshiri: The idea that the scope of the EPA's authority or of any agency's authority is based not on the authority that Congress grants it, but on what a lay person thinks the agency should do, presumably based on its name or something. [laughter]

0:20:11.8 Rhiannon Hamam: Right, yeah.

[laughter]

0:20:12.7 Michael Morbius: Yeah. Right.

0:20:13.7 Peter Shamshiri: It's just inherently fucking stupid. We don't need you to be like, "Is this what the EPA should be doing?" It's like, "Well, Congress told you what it should be doing. That's the whole point."

0:20:24.0 Rhiannon Hamam: Right, right.

0:20:24.7 Peter Shamshiri: This analysis is just... It's just...

0:20:28.6 Michael Morbius: It's garbage.

0:20:28.9 Peter Shamshiri: It's just fucking ridiculous. It's just so fucking stupid.

0:20:32.2 Rhiannon Hamam: It's so stupid.

0:20:33.9 Michael Morbius: I feel like the dissent was really good on this point, and I think this is maybe a good time to get into the dissent. It's by Kagan, who is very much at home and comfortable, talking administrative law. So, it comes through. I thought it was pretty strong. But, one of her best points is, I think, showing very clearly how sort of stupid Robert's gut instinct is, in this case. And so, to illustrate, she talks about the way the power grid works and the market and how it naturally goes towards cheaper power generation first, regardless. And so, she was like, the majority talks about maybe allowing "inside defense", like technological regulations of power plants, but the EPA can affect the same exact thing by doing that. If you say you have to do some carbon capture, well, that increases the cost of burning coal and natural gas, which bumps them down in the priority list of which energy to go to, because it's more expensive now, and the EPA could easily get generation shifting that way, by just making stuff more expensive by regulating it to the point where it's too expensive to be first or second on the list of energy sources. So, Roberts, this might raise an eyebrow because you're a fucking moron who doesn't understand the energy grid, but for someone who is even moderately fluent in it, this is pretty normal stuff.

0:22:20.1 Rhiannon Hamam: Yeah.

0:22:22.1 Peter Shamshiri: I saw a massive machine, made almost entirely of metal, take off and fly through the sky, the other day, and I will tell you, an eyebrow was raised. [laughter] How is it doing that when it's heavier than the air?

0:22:37.9 Michael Morbius: Yeah. That's a good question. A second ago, it was on the ground.

0:22:41.5 Rhiannon Hamam: When you think about it, how do birds do it? You know? Beats me.

0:22:45.7 Michael Morbius: Fucking magic.

0:22:45.9 Rhiannon Hamam: It raises an eyebrow. This is a major question. We gotta talk about it. [laughter] It's the biggest damn question I've seen.

0:22:55.3 Peter Shamshiri: Those question's big as shit.

0:22:56.7 Michael Morbius: So, for Kagan, I think that's one of her stronger points is, sort of illustrating how sort of made up this is. She also does a good job, I think, of contextualizing the history or the non-history of the major questions doctrine. She points out, this is the first time it's ever been in a majority opinion. The court's like, "We're just applying law here," and she's like, "This test is made up. This is the first time the court has ever actually applied this test as a matter of majority opinion law. So, what the fuck you talking about?" And then differentiating like Peter just did, with the OSHA and vaccine stuff, and agencies may be stepping out of their lane. So, she's very good on the history, very good on the sort of lawlessness of this. Very good, I think, on the point where she disavows a previous statement where she had sort of infamously said, "We're all textualists." She says, "Actually, no, we're not, because there's nothing textual about this opinion and this court is happy to just abandon textualism when its desires aren't met by it."

0:24:05.8 Rhiannon Hamam: Right, right.

0:24:06.7 Peter Shamshiri: Yeah, but also maybe don't publicly announce that we're all textualists. You're completely biting on their bait.

0:24:13.2 Rhiannon Hamam: Right, right. And then get duped.

0:24:15.6 Michael Morbius: Yeah.

0:24:16.0 Peter Shamshiri: And then, they immediately reveal that they're actually not. We just got had.

0:24:20.0 Michael Morbius: Yeah. I think this illustrates how badly duped so many libs were, but it's at least gratifying, to see them be like, "Yeah, that was some bullshit. Textualism bullshit, and this is bullshit." So yeah, it's a good dissent. It's a strong dissent. It's well-written, I think if you're interested in admin law, you should definitely read it.

0:24:41.3 Peter Shamshiri: Yeah, yeah. I think it's also worth noting; Gorsuch files a concurrence here. Not really saying much, but he's been a big proponent of the non-delegation doctrine, which is the idea that, Congress's ability to delegate authority to agencies, to administrative agencies should either be eliminated or more realistically paired back in some significant way. And then, this concurrence is just sort of like his victory lap being like, "Okay, so this isn't quite non-delegation, but it's close, right? We've basically sort of replicated it by another name, so big pat on the back for me."

0:25:20.6 Michael Morbius: Kagan has a little snark, I think, for Gorsuch. She drops in a footnote where she says, the majority opinion at least addresses the statute's text, unless she takes issue with it. She says the concurrence by contrast, concludes the Clean Air Act is not clearly enough authorized EPA's plan without even citing the statutory text. [chuckle] Nowhere will you find the concurrence ask, "What does the phrase, best system of emissions reduction mean?" So much for "beginning as we must with a careful examination of the statutory text". That's as close as Elena Kagan will ever come, to calling someone totally full of shit.

0:26:00.5 Rhiannon Hamam: Right. Yeah, yeah, exactly. You all aren't even doing this by your own rules.

0:26:03.2 Michael Morbius: But, it's not bad, as far as that stuff goes. I mean, pretty lazy, to not even bother with the fucking text in the statute. Come on.

0:26:12.6 Peter Shamshiri: Who needs to, baby?

[laughter]

0:26:14.8 Michael Morbius: Yeah.

[laughter]

0:26:17.2 Peter Shamshiri: Stepping back, the past term caused so much destruction that, much of the discourse is about what it has a wrought, but it's just important to realize how much of the term the conservatives spent arming themselves for the future. Last week, we talked about how many existing legal tests they threw out and replaced with an analysis of history and tradition, which is both readily subjected to manipulation and inherently biased towards reactionary outcomes. And here, you have the court crystallizing the major questions doctrine as the law of the land, essentially just as a way to attack regulations it doesn't like. These are doctrines designed to give themselves ammunition for the future, for the next case, to make the next awful thing they do, seem as though it's grounded in precedent, and we've discussed this a bit before, but this is how bullshit jurisprudence works, right? In the first case, you make it up. In the second case, you cite the first case and say that you're following precedent. In the third, you cite the second. Each case is a justification for the next, right? And eventually, you reach a point where there are so many layers of cross-referencing cases that you might not realize that the foundation is bullshit. It's the illusion of structural integrity, right?

0:27:39.0 Michael Morbius: That's absolutely right. And so in 10 years, there might be a whole well-developed major questions doctrine that you can read and distill for your admin law outline in law school and shit. And if you don't go back and read through to this case and read this case critically, you will have no idea that it is entirely made up bullshit. Right from what is an advisory opinion, for the non-legal nerds, an advisory opinion is basically when the supreme court or a court in general issues an opinion that doesn't really have the force of law, because there was no case or controversy before it, something that the Court is held in very low recognition and esteem by the Supreme Court. Kagan calls this is an advisory opinion. I think it's not really in doubt that that's what this is. Yeah, the court just being like, "Yeah, we're gonna issue in an advisory opinion, but we basically say, "Hey, don't get too cute, EPA, you think you can fix climate change. We're here to tell you, you can't and we're gonna stop you if you try." [chuckle] That's basically what this opinion is.

0:28:58.3 Rhiannon Hamam: Right, yeah. Totally.

[laughter]

0:29:00.9 Michael Morbius: Like that's the only purpose it serves, is like a shot across the bowel of the EPA and the Biden administration. Like if you try to be aggressive in regulating the energy industry, we are here for them. We are their shield and their sword, and we don't even need a fucking case or controversy.

0:29:19.3 Leon Neyfakh: Do not mess with my large coal emitting son.

[laughter]

0:29:22.3 Michael Morbius: Right. That's right. That's what this is, and that's now the foundation for most of the administrative law. And it is gonna be most of the administrative law, because look, in this opinion, they say major questions doctrine from their precedent teaches them that there are, "Extraordinary cases that call for a different approach." Like Peter said three times, one term, not so extraordinary, including one where it's just the EPA regulating the emissions from power plants. Hard to imagine something less extraordinary than the Environmental Protection Agency regulating power plant emissions. So yeah, this is the Administrative Law. This is the future and the present of the administrative law.

0:30:10.3 Peter Shamshiri: And yeah, while we're on the topic of the major questions doctrine and how fucking empty it is, important to note that the history of it stems primarily from a 2000 case called FDA v. Brown and Williamson, where the court held that the FDA could not regulate tobacco, claiming that tobacco was not a drug under the statute. And they sort of couldn't really justify on that on its face, so they said, "Well, this is an issue of vast political and economic significance."

0:30:47.9 Rhiannon Hamam: Smoke and cigarettes. [laughter]

0:30:48.8 Peter Shamshiri: "So we think that Congress should have to sort of specifically say that you can regulate tobacco." Which Congress subsequently did, right? So that case is sort of like the earliest manifestation of the major questions doctrine functionally, as it exists right now. But then it just gets ignored. It gets ignored for years. In 2007, there's a case called Massachusetts v. EPA, and it's about the ability of the EPA to regulate greenhouse gas emissions, something that people were concerned that might come up in this case, whether the EPA can actually regulate Emissions at all. The court thankfully didn't quite go there. Scalia writes a dissent where he basically says, "No matter how big the question, we need to defer to agencies on issues like this." That dissent was signed on to by Thomas, Alito, and Roberts.

0:31:50.0 Rhiannon Hamam: Well, well, well.

0:31:51.5 Peter Shamshiri: So that's 2007, those dudes taking the complete opposite position that they do here, the express opposite position. But Anthony Kennedy left the court, Ruth Bader Ginsburg left the court. All of a sudden, doctrines that grant the court huge amounts of power are looking pretty sweet to the Conservatives.

0:32:14.6 Rhiannon Hamam: That's right.

0:32:15.4 Peter Shamshiri: And so they looked back on that 15 or so years later and they thought, "Actually, maybe we were wrong about that." We've been really harsh on a major questions doctrine and maybe it's our best friend.

0:32:27.2 Rhiannon Hamam: Actually, this does raise my eyebrow.

0:32:30.2 Michael Morbius: [chuckle] Yeah, it is interesting to see. Scalia, he was definitely a different brand of conservative who was a lot more sympathetic to the need for the administrative state, generally. He was very statist in that way, and I think he had a background in the executive branch and working in agencies and that's probably a function of that.

0:32:51.1 Peter Shamshiri: It's also worth noting that the EPA we were talking about was the Bush administration EPA.

0:32:56.9 Michael Morbius: Of course, I think it's no surprise that what? FDA v. Brown and Williamson is basically taking a swing at Clinton's FDA for trying to do good, and the next time you see this, it's the conservatives being like, "Well, let's defer to Bush's EPA, of course, [laughter] like we don't like Clintons FDA, but we do like Bush's EPA. Not surprising that they don't like Joe Biden's EPA, right? Like it's just ideological preferences.

0:33:30.1 Peter Shamshiri: And on the note of sort of who's driving this and the political actors behind it, a big player here is the Republican Attorneys General Association, which is just the sort of association of Republican attorneys general like State Attorney General, attorneys general, AGs. I'm going with AGs.

0:33:51.8 Rhiannon Hamam: [laughter] Yeah, there you go.

0:33:52.9 Peter Shamshiri: Which was formed in the late '90s as sort of like a political thing. Like we're gonna get more Republicans elected to AGs, and has evolved into a massive legal like Republican legal activist network. They bring suits designed to push the GOP agenda, and they're involved in this. And it's sort of insane what the shit they get up to because it's not always like pro-states rights. Like they've made arguments against California implementing their own emissions caps. So they're not like, "Well, we represent the interests of states." They're literally just out there filing lawsuits for the Republican Party. So this case is sort of designed by RAGA, by the Republican Attorneys General Association, and they've become their own little political body. They can accept donations, especially both Citizens United. They have established themselves as what's functionally their own little subset of the Republican Party. And if you look at the Council on the briefs in this case, West Virginia is the sort of headliner petitioner here. But there are a bunch of other states involved, so you have participation from attorneys general from Alabama to Montana to Georgia, to South Carolina to Louisiana, Utah. There's like a dozen more. So I think what you're witnessing here is this coordinated effort by Republicans in state offices to drive their agenda forward using dark money to sort of fund these efforts to do a right-wing impact litigation.

0:35:45.5 Rhiannon Hamam: Absolutely, yeah.

0:35:46.8 Michael Morbius: Yeah, that's right. And if you think the Republican judges that they are arguing in front of any less organized or...

0:35:55.3 Rhiannon Hamam: Informed by the network.

0:35:56.9 Michael Morbius: Any less down for the cause, you are sorely mistaken. They're all on the same team.

0:36:01.7 Rhiannon Hamam: Exactly. I'm glad that you brought up how this case shows that the Supreme Court is capping for basically, the fossil fuel industry, that they're saying, "We will protect you from regulations." I think it's really important that this case and this doctrine is about an economic theory. This is less a fair bullshit, this is an economic theory in jurisprudence and not about social welfare or addressing climate change or meeting the demands of an oncoming global catastrophe. This is about, "We think that industry should not be regulated in this way." It's about, "We think industry should not be regulated this way. It should be sort of unbound by these silly regulations, and if the EPA or any agency wants to impose these kind of broad rules on an industry-wide issue, it's gonna be struck down." I think that the future attacks on the administrative state, it's not super clear like what will happen in the future beyond the EPA. But you can certainly imagine the Supreme Court using the major questions doctrine, using these economic theories that are at the base of these decisions. You can certainly see them using these theories and these arguments in say, a case about the NLRB's power or OSHA's power or the Consumer Financial Protection Bureau's power. This will certainly extend, I think, from this court to limit the power of other federal agencies as well.

0:37:48.0 Michael Morbius: Absolutely, and it very much changes the sort of balance of power between the coordinate branches, right?

0:37:56.5 Rhiannon Hamam: Yes.

0:37:56.8 Michael Morbius: This is a court that is flexing its muscle here, stepping in between Congress and the Executive. And simultaneously, it's not just disempowering an agency, although it is doing that very explicitly, it's also disempowering Congress, right? It's making it harder for Congress to legislate. Usually with statutory textual doctrine like this, a doctrine of statutory interpretation, the court will maybe give some guidance to Congress for what it can do to satisfy the Doctrine. Like what are the magic words you drop in the statute to let the court know, "Yes, this is a major question, and we recognize that and we are explicitly delegating authority to answer that major question to the agency." The court isn't clear on that, and it doesn't wanna be clear because it doesn't really know what the major questions are gonna be. We made this point in the vaccine case, but a few years ago, the vaccines were not a partisan issue.

0:39:09.6 Rhiannon Hamam: That's right, yes.

0:39:10.2 Michael Morbius: And a lot of vaccine skepticism was hippies and bougie types in Northern California and Towson shit. [laughter] And conservatives thought they were morons, and so it wouldn't have clocked as a major question like at all.

0:39:26.2 Rhiannon Hamam: Exactly, yeah.

0:39:28.0 Michael Morbius: The media environment changed and the political environment changed, and something that wasn't a major question became one. So all this really does is empower the court at the expense of Congress and agencies, which is a shame because Congress is already unbelievably dysfunctional. Writing laws is already extremely difficult in agencies which are, in some sense the most functioning part of our government are already very slow and bogged down by the administrative procedure act and all these things that they have to do to comply with the law, which is good, but this is just making their job harder.

0:40:09.9 Peter Shamshiri: Right.

0:40:10.6 Michael Morbius: And making their effectiveness worse.

0:40:13.3 Rhiannon Hamam: And you don't have to wait to see how states and other litigants are asking the court to extend this major questions doctrine and limit the power of federal agencies. You see already, Texas, my fucking home state, has filed a lawsuit against the Biden administration over Joe Biden's Executive Order that hospitals, doctors have to perform at least emergency abortions and are protected in doing so. Texas has filed a lawsuit, and in it they have directly cited this case, directly cited West Virginia v. EPA and the major questions doctrine to say, "Look, the Supreme Court just said that Federal Agencies, Federal bureaucrats don't have this extensive power and that these questions should be left to the people and representatives."

0:41:10.9 Peter Shamshiri: Running through this opinion is like a utter disdain for bureaucrats, right? And a sense that they believe that these bureaucrats are like these faceless, unelected, deep state creeps that are running the country secretly behind closed doors.

0:41:35.0 Michael Morbius: That's a fucking mirror, bro.

0:41:37.7 Peter Shamshiri: Right, right. [laughter] Genuinely.

0:41:40.9 Michael Morbius: Yeah.

0:41:41.5 Peter Shamshiri: First of all, you look at how regulations get passed. And what happens is, they propose a regulation and then there's public comment. Meaning, members of the public, usually experts, but could literally be anyone, comment on it and get to give their suggestions and thoughts. And then the regulation is tinkered with and finalized, and that's what the process of passing regulations look like. Compare that with the fucking Supreme Court. [chuckle] It's such a fucking joke, but they're just sort of like passing along these long-held conservative fears of bureaucrats, "Bureaucrats are in the way of business," and shit like that. It's fucking embarrassing.

0:42:26.4 Michael Morbius: Comparing the Justices to agencies and the notice and comment process is like, how dope would it be if you got to publicly comment on Supreme Court drafts? I mean, one time the public got a look at the drafting process and everybody had a fucking meltdown. But [chuckle] it would be affirmatively good if drafts of opinions were circulated and law professors and publications, you know, it got written up in The New York Times and there was like public response. I don't know, just off the top of my head, I actually think that might be good. I think that might be good. This is a little half baked, obviously.

0:43:11.0 Peter Shamshiri: Yeah. [chuckle] Well, I mean, when an administrative agency puts out a regulation, there's a period of public comment. When there's a leak of a Supreme Court opinion, people are like, "This is actually a crime, I think." [laughter]

0:43:23.4 Rhiannon Hamam: Right, yes. Yeah. [laughter]

0:43:27.5 Peter Shamshiri: It's fucking embarrassing. I would love for there to be a period of public comment, and every single time I'd submit, "This looks dumb as hell, fuck you guys." They'd be like, "There's Peter again." [laughter] I think it is time for a quick break. And we're back. There's a project here at work that's really truly enormous in scope. Leonard Leo, the former head of the Federalist Society, and one of the sort of primary architects of conservative legal strategy, has explicitly said that he wants to return to a pre-New Deal form of government. And what that means is the roll back of the New Deal state, the steady dismantling of the federal government, right? All of the agencies that pass regulations to protect our interests in various ways and to various degrees of efficacy, they wanna see that eliminated. They want to see a return to a world where wealth dominates everything, and that project is bigger than the EPA, it's bigger than any given administrative agency.

0:44:45.2 Rhiannon Hamam: That's right.

0:44:45.9 Peter Shamshiri: We are talking about a return to a much harsher world for nearly every person in the country.

0:44:54.2 Rhiannon Hamam: Yeah.

0:44:54.8 Michael Morbius: Yeah, we talk a lot on this podcast about conservatives striving to undo the gains of the War on Court, the Civil Rights Movement, sexual revolution, all that good stuff. We talk less, although we do talk about it sometimes, less about their goals to undo the New Deal, but that is very much a part of the conservative project. In this case, it is a very big piece of that, the dismantling of the administrative state is the effort at rolling back the New Deal as much as possible. And that is a lot of what we can expect in the next 10-15 years, if the composition of the court doesn't change.

0:45:39.1 Peter Shamshiri: Right. We've talked a lot about how their goal, the conservative legal movements goal has been to attack the winds of the War On Court. But now that is essentially in hand, right?

0:45:54.1 Michael Morbius: Right.

0:45:54.6 Peter Shamshiri: And so you will see them start to move towards different targets, and the sort of next obvious target is the New Deal. And just to hone in on climate change as we wrap, I feel like the thing that's so depressing about this case is that what we're talking about is some little ticky tack regulation that was never implemented and wouldn't do anything if it was. It's not like this is the Green New Deal, alright? We have this pathetic milk toast administration that has no interest in implementing the kind of climate change legislation that we actually need, even if it could get it through Congress, which they can't, right? And then lurking in the background is the Supreme Court throwing this case at us, just to remind everyone that if by some unparalleled miracle, we do do something to address climate change, they'll be there to strike it down. Just fucking, just bleak. This is why the Zoomers are gonna rise up and kill us. [chuckle]

0:46:58.3 Rhiannon Hamam: And we deserve it.

0:47:00.8 Peter Shamshiri: Yeah. It's not our fault Zoomers. [laughter] Please bear us.

[laughter]

0:47:03.5 Michael Morbius: I think that the boomers end the greatest generation, Jesus Christ, the Dems are old. Who like run the Democratic Party, I don't think they really appreciate how much this encourages people to just lose faith in democracy and Democrat politics. Small D and large D Democratic politics.

0:47:22.8 Peter Shamshiri: Yeah.

0:47:24.0 Michael Morbius: Like, what is the fucking point? Right? Honestly, What are we talking about here?

0:47:30.1 Rhiannon Hamam: Yeah.

0:47:31.0 Peter Shamshiri: Right. Right.

0:47:33.1 Michael Morbius: Like you can't even have the balls to say, "Well, yeah, we will go to the bat for your future against the Supreme Court. We don't think what raises an eyebrow for John Roberts is so important that it's worth sacrificing the entire bread bowl Midwest." [laughter]

0:47:52.5 Rhiannon Hamam: Right, right.

0:47:53.6 Michael Morbius: Right? To drought.

0:47:54.2 Rhiannon Hamam: Smart climate policy, yeah.

0:47:55.3 Michael Morbius: Right. The millions of people to famine, and all of Florida to flooding and whatever, right? The southwest to fires. Like those things are more important. That's not the case for the current party, and it makes electoral politics seem like a joke.

0:48:13.0 Peter Shamshiri: Yeah. Well, you'll be eating your words, Michael, when they give us vouchers for snorkels. [laughter]

[music]

0:48:29.6 Peter Shamshiri: Next week, Jamelle Bouie coming on the show and talking about the Democrats.

0:48:39.2 Michael Morbius: Talking about what I was just talking about. [laughter]

0:48:41.8 Peter Shamshiri: Specifically about the Democrat's response to the modern Supreme Court. And we're gonna give them a rating, out of 10, and how they're doing.

0:48:50.6 Rhiannon Hamam: Hot or not.

[laughter]

0:48:55.5 Peter Shamshiri: Follow us on Twitter @fivefourpod. Subscribe to our Patreon at patreon.com/fivefourpod, all spelled out. Premium and ad-free episodes, special events, access to our Slack, all sorts of stuff. We'll see you next week.

0:49:14.7 Michael Morbius: Bye everybody. 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

[laughter]

0:49:48.8 Peter Shamshiri: I had a thought. I was like farther back. Shit, I feel like I lost it. Well, my other thought... Oh yeah, it's okay. I got it. I got it. It was a full Michael. [laughter]