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Yahoo
30-05-2025
- Business
- Yahoo
Supreme Court Deals a Body Blow to Bedrock Environmental Law
On Thursday, the Supreme Court dealt a body blow to America's bedrock environmental law, the National Environmental Policy Act. The court issued a unanimous decision that will buttress the Donald Trump administration's efforts to gut the law and fast track fossil fuel projects. Environmental advocates contend that the result of Thursday's opinion over a proposed oil train will be more Americans exposed to preventable environmental, health, and climate harms, a well as reduced public participation in key government decision-making. The largest and most immediate beneficiary is the fossil fuel industry. Seven County Infrastructure Coalition v. Eagle County, Colorado is now the latest in a growing list of radical opinions issued by the Supreme Court that undercut the nation's foundational environmental and civil rights protections. At issue is the National Environmental Policy Act (NEPA). The 1970 law requires federal agencies to consider the potential impacts on 'the human environment' prior to issuing authorizations for major projects, such as pipelines, refineries, and highways, and to inform and allow the public to weigh-in on its decision. The public is also empowered to bring legal action against the federal government if it fails to comply with these rules. 'NEPA has proven to be a vital civil rights tool that empowers those who have historically been excluded from decision-making processes,' writes the Howard University School of Law Civil Rights Clinic in a friend of the court brief. 'NEPA ensures that all people with a stake in federal action — regardless of race, color, national origin, tribal affiliation, or income — can have a voice.' Justice Brett Kavanaugh wrote the opinion for the conservative supermajority, ruling to severely circumscribe the law to focus only on the most immediate impacts of a given project. Justice Sonia Sotomayor wrote a concurring opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, agreeing with the majority's decision to reject a lower-court ruling, but arguing for a much more limited finding in the case. Justice Neil Gorsuch recused himself, likely due to his fossil fuel industry ties. 'It really underscores the extent to which seemingly unanimous opinions can actually conceal a lot of disagreement,' constitutional law professor Leah Litman of the University of Michigan Law School tells me. Litman is the author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes and a cohost of the popular Supreme Court podcast, Strict Scrutiny. 'It's clear that the three Democratic appointees diverge pretty sharply from the majority opinion in their views about NEPA. They fault the majority opinion for writing unnecessarily broadly.' 'The court certainly ruled against the plaintiffs, but it went far beyond that to mount a broad attack on NEPA itself,' says Sambhav Sankar, senior vice president for programs for the environmental law firm Earthjustice, a respondent in the case. 'This administration is going to treat this ruling as permission to ignore the environment entirely as it promotes fossil fuels, attacks clean energy, tries to roll back sensible pollution regulations, [and] claim that it can entirely ignore the reality of climate change when it makes its decisions.' The Seven County case involves a dispute over construction of a new 88-mile stretch of railway to carry 'waxy' crude oil out of Utah's Uinta Basin by connecting to an existing national railway. The oil would travel from Utah through Colorado, and on to Texas and Louisiana where the oil would be refined. Eagle County, Colorado, and five environmental organizations argued that, in granting authorization for the Uinta Basin Railway, the federal U.S. Surface Transportation Board during the previous Trump administration failed to conduct a full analysis required under NEPA. The U.S. Court of Appeals for the D.C. Circuit largely agreed. It found that the board ignored key 'upstream' and 'downstream' harms, such as from increased oil production in Utah, from increased rail traffic in Colorado, and increased refining in the Gulf Coast. The proponents of the railway appealed to the U.S. Supreme Court. The case has drawn the attention of the nation's most powerful legal operatives, from the conservative lawyers group, the Federalist Society, to the nation's largest oil industry and business lobbies, including the American Petroleum Institute and the U.S. Chamber of Commerce. The majority opinion leans heavily on the amicus brief submitted by the U.S. Chamber of Commerce, the world's largest business organization, which often spends more money on federal lobbying than any other group. ExxonMobil holds a leadership position in the Chamber. Justice Samuel Alito participated in the decision despite owning stock in several oil and gas companies as recently as September 2024 and recusing himself from prior fossil fuel-related cases, presumably because of these potential conflicts. Last term, Alito agreed with the Chamber in 73 percent of cases. Justice Kavanaugh quotes the Chamber in describing NEPA as 'a 1970 legislative acorn [that] has grown over the years into a judicial oak that has hindered infrastructure development.' The opinion then describes new limits on the scope of NEPA, allowing that 'an agency may decline to evaluate environmental effects from separate projects upstream or downstream from the project at issue' particularly where 'those separate projects fall outside the agency's regulatory authority.' In an effort to limit future litigation, the opinion then calls for significant deference to be given by the courts to the government agency conducting the NEPA review. The effect of the ruling is to allow agencies to focus their analysis only on the immediate project proposal before them — in this case, the 88 miles of new rail. Major infrastructure projects, however, rarely have such circumscribed effects, particularly when considering impacts such as greenhouse gas emissions. Backers of the railway, for example, anticipate its construction will facilitate a quintupling of overall oil production in the Uinta Basin, creating a new colossal oil fracking hub. Uinta's oil is described as 'waxy oil' due to its uniquely thick viscosity and must be heated to be transported. The Uinta Railway would carry an estimated 350,000 new barrels of this waxy oil per day, sent in two-mile-long trains hauling 110 oil tanker cars, from Utah and on to Colorado, through an at-times treacherous 100-mile track along the Colorado River. It would travel down to refineries located in some of the hardest-hit environmental justice communities in Texas and Louisiana's Cancer Alley, in areas already overburdened by pollution. Opponents predict health harms from increased pollution for people living in states along the entire route. They cite increased pollution from more oil fracking in Utah and the risk of train derailments leading to oil spills into the Colorado River, which would threaten the drinking water supply of 40 million people in seven states across the Southwest, including 30 Native American Tribes. The climate impacts of burning an extra 350,000 barrels of oil a day would produce 53 million tons of carbon dioxide, roughly the equivalent of six coal-powered power plants. Writing a letter in opposition to the railway, communities in Louisiana where the oil would be refined say, 'We have worked hard to reduce the disproportionate burdens of pollution and environmental injustice on our communities caused by the fossil fuel industry. The massive influx of oil via train from Utah will only make our situation worse.' The majority opinion seeks to limit NEPA review to a consideration of only the immediate impacts on people and the environment along the 88-miles of new railway. 'It is disastrous,' says Wendy Park of the ruling. Park is a senior attorney at the national environmental protection organization, the Center for Biological Diversity, another respondent in the case. She has personally been litigating against the Uinta Basin Railway since 2018. The ruling 'draws artificial boundaries around the scope of NEPA review, ignoring decades of precedent and the plain language of NEPA, which says that agencies are required to consider the reasonably foreseeable effects of their proposed actions. This decision essentially allows agencies to bury their head in the sand and ignore harmful effects to air, water, and wildlife, and it will mean more pollution, more habitat destruction, more unhealthy communities.' 'This decision will embolden agencies to ignore the climate consequences of their proposed actions.' Park adds, 'It is probably just the worst possible outcome that we could have imagined.' A key reason for Park's concern is the context within which the ruling is taking place. The Trump administration is actively working to gut NEPA by taking out its legs. In April, the administration repealed the regulations used to implement the law across federal agencies. The administration also told agencies that they should no longer consider climate, environmental justice, or cumulative impacts of operations when conducting their analyses. 'Basically, the administration is stripping all substance from NEPA,' Andrew Mergen tells me. Mergen spent some three decades at the environmental division of the Department of Justice and has likely litigated more NEPA cases than any other lawyer in history. He is the Faculty Director of the Emmett Environmental Law & Policy Clinic at Harvard Law School. He describes Seven Counties as the most significant NEPA case in twenty years. Mergen calls NEPA, 'a profoundly important statute' and 'the most copied and emulated environmental statute of all time,' influencing the way the states, other countries, and international financial institutions approach environmental disclosures. 'The NEPA process results in countless projects that are redesigned in a way that avoid stupid, ill-intentioned, unnecessary harms to the environment.' He recently co-authored a paper (and shared another) dispelling many myths about NEPA and environmental permitting as the objects of undo infrastructure obstruction. He supports deference to agency experts in decision-making, but questions the Supreme Court's timing, because 'those people are, by and large, gone, the agencies are being hollowed out,' because 'Trump is in the process of completely gutting the federal agencies.' There is also more than a little bit of irony in the majority's adoption of agency deference, given its repeatedly articulated disdain for federal agencies as the backbone of the 'administrative state.' Less than one year ago, the Supreme Court's ultraconservative supermajority ruled to overturn the Chevron doctrine, which had instructed courts to generally show deference to how federal agencies implement and enforce the law. The case, known as Loper Bright, was argued by lawyer Paul Clement. Clement also argued on behalf of the railway in Seven Counties, this time asking for more agency deference, which the majority agreed to. Mergen also shares the concerns voiced by the environmental justice community of constraining NEPA's lens. 'For decades, Black, Latinx, and Indigenous communities have borne the brunt of environmental hazards, breathing in polluted air, living near toxic waste, and facing the worst effects of climate change. NEPA has served as a key tool for advocates to combat these injustices,' said Lourdes M. Rosado, President and General Counsel, LatinoJustice in a statement. 'Rolling back NEPA's regulations is an outright attack on communities of color.' Responding to Thursday's ruling, John Beard, Jr. who lives in Port Arthur, Texas — a small majority Black and Hispanic community and the site of a Valero refinery expected to receive the new Uinta Basin Railway oil trains — asks me, 'Who is ultimately going to be held responsible if these NEPA concerns are not addressed and looked at? That's the question.' Beard says that the matter is ultimately about the lives and health of people in his community and all along the rail, and the ruling 'seems to be a way of deferring responsibility and marginalizing those communities that are going to be adversely affected, so that their voice can't be heard.' 'At the end of the day, [the conservative justices] are hostile to industry regulation, and particularly regulation of polluters and the fossil fuel industry,' says Litman, the Lawless author. If that means that the justices have to come up with 'made-up' rationales to explain away their twists and turns of logic, they will, she explains. Michael Burger is the Executive Director of the Sabin Center for Climate Change Law at Columbia University. He argues that the impact of the ruling will be determined by how it is interpreted by the courts, but a likely casualty will be future consideration of the climate. 'The legacy of this case is going to depend on how it's treated by agencies and courts in the future,' he says. 'Certainly, it seems geared toward granting this administration in particular greater leeway to go faster in fossil fuel development and to do less environmental review than it otherwise would have had to do.' He adds, 'I don't think there's any question that this decision will result in less climate-related disclosure in NEPA reviews.' 'Right now, the courts are the only thing standing between the planet, the people, and an administration that essentially represents the fossil fuel industry and other polluters, Earthjustice lawyer Sankar warns. The Supreme Court's ruling will have far reaching impacts on U.S. environmental, public health, environmental justice, and climate policy for decades to come, particularly when combined with Trump's simultaneous decimation of the law. But the ruling does not greenlight the Uinta Basin Railway. It returns the case to the lower court for further review under more limited parameters. The railway is then subject to additional permitting and reviews before it can be built and faces innumerable internal hurdles, including a perennial lack of funding and a missing rail operator. The Seven County Infrastructure Coalition is the public partner of the Uinta Basin Railway. It is an independent political subdivision of the state of Utah composed of seven Utah counties. The Coalition held its most recent public meeting on May 8 at the Carbon County Commission Chambers in remote Price, Utah, which I attended via Zoom. Board Co-Chair Jack Lytle presided over the meeting and is a dead ringer for actor Sam Elliott, who, among other classic western characters, plays The Stranger in The Big Lebowski. Tall, wiry, and lanky with a shock of white hair and a mustache to match, Lytle even has the baritone voice and cowboy drawl to match Elliott's. There was an almost giddy excitement at the meeting on the fervent expectation that a favorable Supreme Court ruling was on the horizon. 'It's very exciting times,' Executive Director Keith Heaton said repeatedly. But there was also a more sober recognition that the rail project had largely been in stasis as the court cases proceeded, and it was now time to rapidly get things moving again. The first step is to secure federally subsidized tax-exempt bonds to pay for construction of the rail. In 2017, the same year that the Seven County Infrastructure Coalition took up the idea of oil train, Utah State Treasurer David Damschen questioned if the coalition's hefty appropriations of federal dollars were resulting in any material benefits for the rural communities it was designed to help, noting the 'significant' salaries and fees paid to board members and consultants, including lawyers and engineers, with little to show in outcomes, the Salt Lake City Tribune reported. On May 8, the coalition's financial advisor, Cody Deeter, seemed to confront these same concerns, explaining that the benefits of applying bonds to pay for the Railway include providing the coalition with 'political legitimacy throughout the state to show that you are, in fact, doing what your charter suggested you would do.' The price of the railway has ballooned over the years. Originally priced at $1.4 billion, it is closer to $3.4 billion today, 70 percent of which is to be paid for with the federal bonds. Bond attorney, Tim Stratton, whose fee, he explained, is $600 an hour, said 'given the passage of time, supply chain, issues, inflation, those sorts of things, the estimated costs have changed on the rail project' with the developer now asking the coalition 'to go with a dollar amount of $2.4 billion instead of the original $2 billion' for the bond request. If the coalition receives the request, it will effectively zero-out the U.S. Department of Transportation's Private Activity Bond program, which has exactly $2.4 billion left out of its original $30 billion allocation made in 2006. Originally known as Drexel Hamilton Infrastructure Partners, LP and then DHIP Group, the opaque Florida-based private asset manager that owns the Uinta Basin Railway now does business under its subsidiary's name, Uinta Basin Railway Holdings, LLC. It is also now the sole corporate partner after Texas-based Rio Grande Pacific Corporation, a private railroad holding company that was to be the rail operator, pulled out of the project back in 2023. Two years ago, the Seven County Infrastructure Coalition's effort to apply for bonds was met with a fierce public backlash, which is sure to be repeated when the coalition brings the proposal to a public meeting planned for June. Deeda Seed is the senior Utah campaigner for the Center for Biological Diversity where she has been leading organizing efforts against the Uinta Basin Railway for five years. 'If we don't have a healthy environment, what do we have?' Seed asks me from her home in Salt Lake City, Utah. 'From our perspective, from the community perspective, we're going to continue to fight the railway project, we're not going away,' Seed says. 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Yahoo
13-05-2025
- Politics
- Yahoo
The Supreme Court's Radical Right Turn Is About Restoring Patriarchy, Plain and Simple
This essay is excerpted and adapted from Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, which was published by One Signal Publishers, an imprint of Simon & Schuster, on Tuesday. When the Supreme Court overruled Roe v. Wade in the 2022 decision Dobbs v. Jackson Women's Health Organization, the dissenters warned that 'one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens.' In the framework of the biggest hit film the following year, the Barbie movie, the decision to eliminate a woman's right to reproductive freedom was a Ken-surrection—a move to restore a patriarchy where men are on top. Overruling Roe was just the opening salvo in this fight, which has raged ever since and only been exacerbated by Donald Trump's return to the White House. The decision overruling Roe illustrates how the Supreme Court can make constitutional law worse through a cycle that merges feelings and politics with courts and law. The feeling behind the process that produced Dobbs was patriarchy. Those are now the vibes animating this area of law after Republicans turned assorted feelings about feminism and gender roles into a political strategy, and Republican justices channeled the big feelings about feminism and women's sexual liberation to hard launch a gender counterrevolution. Originalism was merely a vessel for Republicans' anti-feminist thoughts and prayers, but that ideology goes well beyond the jurisprudential methodology of originalism. Which means the law may as well. As the feminist movement of the mid-1900s took off, so too did a strand of anti-feminist male grievance politics. After Congress passed the Equal Rights Amendment, the constitutional amendment that prohibits discrimination on the basis of sex, a countermovement pushed states not to ratify the measure. A young lawyer who worked in the Richard Nixon administration wrote a memo offering various objections to the ERA. That lawyer's name was William H. Rehnquist (the same William H. Rehnquist who Nixon would later nominate to the Supreme Court and Ronald Reagan would make chief justice of the United States). Rehnquist blasted the ERA's 'overtones of dislike and distaste for the traditional difference between men and women in the family unit' and warned that outlawing sex discrimination would cause 'the eventual elimination' and 'dissolution of the family.' Phyllis Schlafly, one of the principal organizers against the amendment, urged the country to reject the ERA on the ground that 'women's lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society.' She also accused feminists of 'promoting' 'day-care centers for babies instead of homes' (among other things). The Republican Party decided to incorporate these feelings into a political strategy. They came up with more anodyne-sounding language to describe their anti-women's-liberation platform—a promise to restore 'traditional family values.' That led to an affinity between conservative religious voters, especially white evangelical voters, and the Republican Party. But the politics of gender hierarchy didn't exactly win over the ladies. While the Republican Party won over evangelical voters in the 1980s, they also lost women voters as women began to consistently prefer Democratic presidential candidates. Republicans initially seemed almost surprised that women fled the party, and they struggled with how to respond (without having to embrace women's rights, of course). Nixon staffers acknowledged they had a 'woman problem,' and Reagan promised to appoint a woman to the Supreme Court to shore up Republicans' support among women voters. But at some point, a fair number of Republicans started to view losing women as the inevitable and acceptable cost of their political strategy of male grievance. In 2021, then Republican Senate candidate and future vice president J.D. Vance derided Democrats as 'a bunch of childless cat ladies who are miserable.' When his remarks resurfaced during the 2024 presidential campaign, Vance said, 'Obviously it was a sarcastic comment. I've got nothing against cats.' That same year, Republican congressional representative and future Republican nominee for attorney general Matt Gaetz boasted to the press about the GOP's strategy for replacing lost women voters with minority men voters: 'For every Karen we lose, there's a Julio and a Jamal ready to sign up for the MAGA movement.' That ascendant 'separate sex roles are good actually!' worldview was already being funneled into the jurisprudential method known as originalism. Originalism took off at around the same time that the Republican Party decided to run against feminism and to embrace originalism as a way to do that. Reagan Attorney General Ed Meese said, in front of the entire American Bar Association, that a 'jurisprudence of original intention' was the way to challenge 'the radical egalitarianism and expansive civil libertarianism of the' Supreme Court that had recognized some measure of constitutional protections for women's sexual and bodily autonomy. Originalism had (and still has) a natural symbiosis with a Republican Party that was looking to restore certain traditions such as gender roles related to the family. A key premise of originalism is that the Supreme Court has erred by departing from some righteous past that must be restored. (Patriarchy—the righteous past is patriarchy.) Originalism directs decisionmakers to ask what the Constitution meant when it was ratified or amended (in the 1700s or 1800s). That outsources the content of our fundamental laws, including what rights we have, to a group of people who were probably more sympathetic than the modern electorate to Republicans' platform of gender traditionalism—the white men (Kens) who drafted and ratified the Constitution and many of its amendments. The court's decision overruling Roe illustrates this well. Dobbs declared there was no constitutional right to decide to have an abortion because 'until the latter part of the 20th century, there was no support in American law for a constitutional right to an abortion.' Never mind that women couldn't fully participated in civic society or electoral politics until the latter part of the 20th century. For the majority in Dobbs, it didn't seem to be a bug that their jurisprudential method ignored women. If anything, it may have been a feature, since the Republican justices didn't have to consider the views of the hysterical women who wanted to control their bodies, their lives, and their futures. The majority could instead consult a group that was more sympathetic to the whole 'traditional family values' thing—the dudes (Kens) who ran things in the 1700s and 1800s. It's eerily and conveniently similar to the stated preference of the 2024 Republican nominee for governor in North Carolina, who said, in 2020, that he'd like to 'go back to the America where women couldn't vote because that was when the Republican Party had a better reputation.' Ladies and gentlemen (but mostly for the gentlemen, because patriarchy) … originalism! To this day, originalism fits the Republican Party's political project: It kind of parrots the party's 2016, 2020, and 2024 slogan 'Make America Great Again,' which, like originalism, promises a return to the way things were. (Patriarchy—that's the way things were.) It's important to see the ideology, not just the methodology, that's at work here, in the political party that brought us Dobbs—because the ideology will push the law in ways that go well beyond the methodology. The Trump administration pulled funding for research to protect pregnant women from domestic violence, labeling it a 'DEI' initiative. They slashed funding for family planning programs. They fired the Navy's first female chief, creating an all-male corps of four-star generals and admiral leadership positions. They fired the first woman to serve as Commandant of the Coast Guard and issued a statement disparaging her leadership and 'excessive focus' on DEI policies. The Department of Education rescinded the guidance that indicated name, image, and likeness payments to student athletes should be equal between men and women. The administration has disrupted and destabilized federal funding for rape crisis centers and removed funding opportunities from the website for the federal office on violence against women. They even tried to blame the deadly plane crash at Washington National Airport on 'DEI policies,' which they seemingly used to refer to the mere presence of women (and racial minorities) in important federal jobs. The ideology is, as ever, about subordinating women and elevating men—it is excluding women's voices, and women themselves, from public life. They are sending the message that women are unfit for political leadership and many aspects of civic life. Because that was the ideology at work in Dobbs, the implications for the law go well beyond those matters in which the justices might invoke originalism. This term, the court is hearing a major case involving women's health care, Medina v. Planned Parenthood of South Atlantic. The decision arises out of states' attempts to 'defund Planned Parenthood'—in this case, to bar Planned Parenthood from participating in the Medicaid program (which supplies health insurance to various needy populations). Removing Planned Parenthood jeopardizes women's health care because Planned Parenthood is often the health care provider for indigent and needy populations. In some areas, particularly rural ones, Planned Parenthood is the only health care provider for women. The question in Medina is whether federal law—the Medicaid Act, and the general civil rights statute, Section 1983, allow private individuals (either patients or providers) to sue and challenge a state's exclusion of Planned Parenthood from Medicaid. Originalism is nowhere in the case, since the matter turns on the interpretation of federal statutes rather than the Constitution. But the ideology behind the originalism in Dobbs is. Cases in the lower federal courts underscore the same. Federal courts have heard, or are hearing, challenges to states' exclusion of contraception from the Title X family planning program—another matter that has nothing to do with originalism. A district court in Texas is still sitting on a group of Republican-led states' challenge to mifepristone, one of the two drugs in the medication abortion protocol. In that case, the states are arguing that suppressing teen birth rates injures them, as if teenage girls' true calling is to serve as baby incubators for the states. When the Supreme Court overruled Roe v. Wade, Justice Samuel Alito's majority opinion insisted that no other rights would fall. The statement was ridiculous at the time, and has aged even worse over the last three years. The Republican justices' transformation of the law, and the political movement they are part of, was never just about 'abortion.' They are about women's place in the law, and the country.
