The Best Strategy for Beating Joe Manchin and the Supreme Court in their Plan to Gut Environmental Laws – Vote!

By Hal Shepherd

Once thought to be the bastion of rational jurisprudence and reasoned decision making, the highest court in the land has reached a new low in partisan politics. Although judges are supposed to be the most politically neutral of the three branches of government, they are still governed by partisan politics in many occasions.  The Supreme Court’s recent overturning of the almost 50-year-old Roe v. Wade decision, however, has set a whole new standard for political and religious bias in judicial opinions that are supposed to be based on facts and law.

Free image by Pixabay

First, the right to legal, safe abortion fell prey to the idealogues on the Supreme Court. Then, on its final opinion day of its term, the court issued another cataclysmic but a much more under the radar ruling.  In West Virginia v. Environmental Protection Agency the state challenged an Obama-era regulation that mandated a schedule requiring coal-fired power plants to shift to less polluting and carbon producing technologies. The court’s six-member conservative majority concluded that under the "major questions doctrine,” in cases involving particularly consequential policy decisions, federal agencies must be able to point to clear congressional language allowing it to act. 

Unlike the demise of Roe v. Wade, however, this seemingly rational-sounding and mundane ruling could seriously threaten the federal government’s ability to prevent corporations from spewing carbon into the atmosphere and destroying fish and wildlife habitat. Harvard Law School professor Richard Lazarus, an expert on environmental and administrative law warns that as a result of the West Virginia decision a, “radically conservative majority…has seriously threatened environmental law’s ability to safeguard public health and welfare.”

In other words, the Court has effectively eliminated the flexibility of the federal government to adapt laws to address rapidly changing environmental conditions such as climate change.  According to Lazarus the legislature, knowing their own limitations, “deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities on a real-time basis.”

More importantly, the West Virginia opinion has revealed a plan by conservative politicians to apply the current gridlock in Congress and the now ultra-conservative court to substantially limit the federal government’s environmental regulatory authority including the ability to fight climate change. In fact, not only is the West Virginia decision one that environmentalists foresaw as soon as Donald Trump was elected president and began working with an increasingly autocratic senate majority to do whatever it took to appoint right wing extremists to the federal courts, it appears to be just the beginning of the Court’s assault on the environment.

Now that republican politicians have  brought to a halt congressional Democrats   agenda, there is virtually no chance the “clear congressional language” the Supreme Court requires before federal agencies can act, will ever take place.  No doubt the GOP is also hoping it can continue to block any progress on human health and welfare including the catastrophic impacts of climate change by doing whatever it takes to ensure that only their political candidates get elected to Congress this November.   

The implications of gutting the federal government’s regulatory authority will also be catastrophic for Alaska. The terms of the Mining Law of 1872, for example, which regulates mining of critical minerals needed for the transition to alternative energy and allows companies to extract publicly-owned minerals at no cost on public lands throughout the western United States and Alaska, have not changed since it was enacted almost 150 years ago. Ever since the Civil War era, therefore, mining companies throughout the US have had free reign to decimate places of cultural importance to tribes and public lands at major cost to people, fish, and wildlife. It’s long past time to reform the nation’s hardrock mining rules, end generations of mining-inflicted injustice to Indigenous communities, and pave the way toward a sustainable, clean energy economy.

In April 27, 2021, 17 members of Congress sent a letter the Secretaries of Interior and Agriculture stating that if we are going to increase mining of critical minerals to move towards alternative energy sources, we need to, “reduce new mine waste, pollution, clean-up existing mine sites, protect public health, and close loopholes used by mining companies to evade their legal obligations.” The letter further states that this process must include, “meaningful Tribal consultation and Indigenous resource protections, clarifying federal land managers authority to decide whether to approve mining plan of operations and to reject proposals that may cause substantial irreparable harm, minimize and prohibit harm from tailings and waste piles, and require that mining companies plan for climate change.”

The terms of the Mining Law of 1872, which regulates mining of critical minerals needed for the transition to alternative energy on public lands throughout the western United States and Alaska, have not changed since it was enacted almost 150 years ago. Similarly, the current hardrock mining rules adopted to implement the 1872 Mining Law, continue to form the basis for destroying sacred and cultural resources, scarring landscapes, polluting water, damaging salmon habitat and exacerbating impacts of climate change . If we want to transition to green energy while at the same time, protecting water resources and adhering to the principals of environment justice, the existing rules are the wrong strategy for facilitating that transition

Building a sustainable economy based on clean energy while at the same time protecting public lands from exploitation is also consistent with the Biden administration’s 30 x 30 initiative to mitigate the impacts of climate change on fish and wildlife habitat. Effective  implementation of the 30 x 30 initiative will require new hardrock mining rules that prioritize metals recycling, reuse over new mining, leaving critical flows in stream, preventing toxic releases and maintaining connectivity of habitat.

Many mines generate pollution that persists for hundreds if not thousands of years, requiring costly, perpetual water treatment and long-term financial and environmental liability. In the book “Golden Dreams, Poisoned Streams – How Reckless Mining Pollutes America’s Waters and How We Can Stop It the Mineral Policy Center states that mining as contaminated over 12,000 miles of rivers and streams and 180,000 acres of lakes throughout the United States whichincludes 40 percent of the watersheds in the West.

In response to these issues, the Department of Interior is requesting input from the public in order to assess the adequacy of existing laws, regulations, and the permitting process to determine whether changes to the mining regulations  are necessary, and, if so, make recommendations to the appropriate Federal agencies or Congress on how to implement those changes.

The entire process could be up-ended however, by the recent decision in West Virginia. With democratic Sen. Joe Manchin of Virginia firmly in the hip-pocket of Republicans in the Senate, Democrats have been unable pass any legislation to address the existential impacts of climate change. Because some of the mining reforms Interior is proposing will require legislation, it is therefore unlikely that a gridlocked Congress will be able to enact any of the necessary changes to the Mining Law. Similarly, while existing laws do direct that, “In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands,” it is conceivable that conservative judges could find loop holes in even this language and given the current mood of the Supreme Court, they likely will.    

The current Supreme Court is undoing decades of precedent and severely limiting our constitutional rights and ability to protect the environment and making decision based more on religious grounds rather than the law.  In fact, following the decision in Roe v. Wade, some of the six conservative Supreme Court Justices are asking for the opportunity to consider cases that could ban things like contraceptives and gay marriage.  We have to realize that  the current situations lies entirely at the feet of the increasingly autocratic U.S. Senate. For decades, using conservative presidents as their aid and particularly under former President Trump, the GOP has used every trick in the book to stack the Court with extreme right-wing idealogues. And with the midterm elections approaching, these same politicians are using similar strategies to ensure their candidates get elected.

We need to stand up to these authoritarian practices and eliminate the gridlock in congress that prevents any progress on stemming the rapid decline in human rights and accelerating impacts from climate change by voting those responsible out of office. The good news is that after the Court struck down the right to free choice, more and more people including young people, who are most affected by a lack of choice about family planning and climate change, are beginning to stand up to the anti-democratic actions of Right-Wing politicians including coming out to vote this November. In response to the current crises, President Biden similarly urges voters to make their voices heard at the ballot box.

In the meantime, comments on the proposed regulations to reform the mining laws may be submitted to the DOI mining reform working group through 

https://www.regulations.gov

. Also, there will be three public listening sessions for the Interagency Working Group on mining reform beginning the week of July 18.

Here are the times, and a link to register.  

· Tuesday, July 19, 2022: Noon to 1:30 p.m. ET: Registration link

· Thursday, July 21, 2022: 1:00 to 2:30 p.m. ET: Registration link 

· Tuesday, July 26, 2022: 1:00 to 2:30 p.m. ET: Registration link