News of the week
The long history of how we got to West Virginia v. EPA
Normally on Fridays the intention of “News of the week” is to publish news stories that I consider newsworthy but don’t get much, if any, press. The topic today is yesterday’s Supreme Court decision in West Virginia v. EPA, a story that rightly received front page, above-the-fold attention because of its hobbling of our ability to fight climate change and the further ramifications this decision holds for the rest of the federal government to make regulations on food, safety, and a great deal of what the federal government does.
I am not going to write about the decision. If you want to read about the case, you can find it here. I am not about to editorialize on it. I am unsurprised by this conservative court’s decision in this case, and I don’t like it. That is all I care to say. If you want an opinion piece, there are plenty of them out there in Internetland. That being said, I’d like to recount how we got here, how it came to be that a Supreme Court was crafted to rule on this case as it did.
Firstly, this did not happen over night. We did not just somehow wind up with this Court because of Donald Trump and the Congressional shenanigans of Mitch McConnell. The beginnings of the dominance of business and right wing ideology on the Court, as well as elsewhere in government and the rest of society, can be traced back to August 1971, when future Supreme Court Justice Lewis Powell sent a memorandum to Eugene Sydnor, Jr., a friend of Powell’s and the Director of the U.S. Chamber of Commerce. Powell at the time was a corporate lawyer who sat on the boards of eleven corporations.
Powell bemoaned the state of the nation and what he perceived as an anti-business bias that pervaded the country. He acknowledged that those on the far left had always had their criticisms of business and capitalism, but Powell thought that this ideology had made its way into the mainstream. Drawing particular ire from Powell’s pen was Ralph Nader, whose work for consumer rights had made him popular among the American public and won him accolades even from Fortune magazine.
Looking back at the headlines of the early 1970s, one can understand Powell’s thinking. It was a confusing time of great anti-war and anti-government sentiment caused by the increased U.S. involvement in the Vietnam War. During an 18-month period from 1971 to 1972, the FBI tallied 2,500 bombings in the United States, almost five a day.
At the same time, there was increased faith in government to help its citizens and be ameliorative. Lyndon Johnson signed Medicare and Medicaid into law. Nixon had established OSHA. Most of the great federal environmental legislation was passed during this time. Powell bemoaned these developments, saying, “Current examples of the impotency of business, and of the near-contempt with which businessmen’s views are held, are the stampedes by politicians to support almost any legislation related to ‘consumerism’ or to the ‘environment.’”
Powell thought that the business community had been silent to this criticism and was suffering the consequences. His message to the Chamber of Commerce and big business: Get organized!
Organized they got
It is a commonplace to hear or read in the news about conservative or right wing institutions such as the the Heritage Foundation, ALEC, or the Claremont Institute. ALEC and the Heritage Foundation were formed in 1973, Claremont was established in 1979. Other conservative organizations, like the Heartland Institute and the Federalist Society came along in the 1980s. These are the “think tanks” that write position papers and ensure that they have at least one talking head on those cable news shows. In the case of ALEC, they go so far as to actually write the right wing laws to benefit business, such as the laws that create the crime of eco-terrorism for minor infractions like blocking roadways. Making institutions like these was exactly what Powell had in mind.
For generations, both Democratic and Republican presidents picked Supreme Court Justice nominees after getting recommendations from the American Bar Association, the Justice Department, and Congress. Both parties want Justices that will decide cases in alignment with their ideologies. In the case of the GOP, however, the vetting for ideological purity has reached into the far right corner of the ideological spectrum. All three of Trump’s appointees were vetted and recommended by the Federalist Society.
Besides ensuring that GOP nominated Justices are of their conservative/libertarian line of thought, the Federalist Society also promulgates conservative interpretations of the law, such as originalism, which holds that the Constitution is absolutely fixed, with no evolving interpretations possible, and that this fixed ideology can be discerned hundreds of years after the document’s drafting. This often means, in practice, that rulings favor business over individuals.
And we GOP folks aren't as concerned about the environment as we once were
Besides developing foot soldiers in defense of business and capitalism, the GOP has radically changed its stance on the environment in the last 50 years. Richard Nixon signed both the Clean Air Act and the Endangered Species Act. He established the EPA. It has been a long time since we have seen that type of environmental work by a GOP president.
To find the beginnings of that change we have to again go back to the early 1980s. For the environment, the equivalent of the Powell Memo was Reagan’s 1980 presidential bid. Running as the incumbent, Jimmy Carter advocated for greater environmental safeguards, such as protecting barrier islands from development, and spoke of “a strong defense of environmental protection legislation in the face of growing pressure to dismantle a decade of environmental progress.”1 Reagan, on the other hand, claimed that his aides had told him that American factories were being shut down because of environmental laws.2
“Jobs or environment” became one of the themes of Reagan’s campaign.3 Reagan went so far as to suggest that coal and steel companies should be enlisted to rewrite the Clean Air Act. He pledged to appoint to the EPA people “who understand the problems of the coal industry.4
In another instance Reagan said of the EPA, “I want clean air and water. But I think we’re in the hands of what I call some environmental extremists.” He reiterated this terminology when he was put in the position of defending James Watt, his choice for Interior Secretary, who was a lawyer working to open up more federal wilderness land to mining and oil drilling. Reagan said, "I think he's an environmentalist himself, as I think I am. He is fighting environmental extremists."5
Elizabeth Kolbert, writing in the New Yorker, shares my view that Reagan and his presidency were the turning point for the GOP and the environment. She goes on to say that the forsaking of the environment has only become more entrenched in the GOP since Reagan’s days.
I really don’t know how to fix this problem. I have colleagues who remain optimistic, saying that, at least in the West Virginia case, market forces will correct the situation and move us away from coal and oil, despite the Court’s ruling. Others say that doubling our efforts at the state level is now required. If you have any thoughts on this topic, I’d love to hear from you.
For more environmental science & news follow me on Twitter @EcoScripsit.
Crutsinger, Martin. “Carter, Reagan Differ Widely on Environmental Policies.” Freelance Star 25 Oct. 1980
Kamieniecki, Sheldon, Robert O’Brien, Michael Clarke. Controversies in Environmental Policy. New York: State University of New York Press. 1986. Print p 284
Crutsinger
Ibid
Warner, Edwin, Douglas Brew, Don Sider. “Reagan Sticks With Haig.” Time 29 Dec. 1980.