“Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting. When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter — basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.”

Samuel Alito – US Supreme Court Justice – 2017

This statement alone should terrify you, because it signals that at least one justice places no reliance on science or facts, or humanity, and instead supports the misinformation and propaganda of fossil fuel companies.

By the time you read this*, the Supreme Court of the USA will have ruled on a case that overturns the thousand-year-old law of the commons.

In the process, they will have effectively screwed our kids, setting back our fight against global warming and climate chaos by restricting the EPA’s ability to control CO2 pollution. The case is West Virginia versus the Environmental Protection Agency (EPA).

While the court is supposed to protect our rights as citizens, their ruling is part of a pattern by a politicized court that is trying to dismantle any semblance of racial, climate and economic justice in our country.

Many are upset or outraged by the US Supreme Court overturning Roe v Wade. Or upset that they ruled against stricter gun provisions in New York, or backed Gerrymandering in Louisiana. Many of these decisions have the same root cause.

You have a right to be angry. Let’s break down this bad decision and then look at what it means for our climate and justice efforts.

What is the law of the commons?

The commons are the natural resources accessible to all of us such as air, water, and a habitable earth. These are held in common, even when privately or publicly owned, because they are required for life. As an example, you can’t pollute the water from the stream that runs through your property when people downstream use this water to live. You can’t build a polluting coal plant next to a school, even when you own the land, because the air pollution will harm the kids in the school. This principle has formed the basis for law for millennia. You might say it is common sense.

What is the case about?

West Virginia vs the EPA is about how much authority the EPA has to force power plants to reduce emissions, in particular CO2.

The core of the disagreement is about the Clean Air Act, a bedrock of US environmental law since 1970. The Clean Air Act has lowered pollution and allowed us to breath cleaner air.

In 2015, President Obama used the Clean Air Act to set guidelines on CO2, a major pollutant from power plants, and the biggest contributor for global warming and climate chaos. But West Virginia and a dozen other states sued the EPA, and the Supreme Court put the guidelines on hold while the case worked its way up.

In the meantime, the Trump administration created their own rule called the Affordable Clean Energy Rule. They maintained that the EPA might have the ability to regulate CO2 within a power plant, but they couldn’t force a utility to change how they produced energy from say fossil fuels to renewables, or by regulating CO2 over a wider area, i.e. across state lines. Think about protecting a common resource, our air and a habitable earth. Of course, a number of other states sued to prevent Trump’s rule. They were successful and West Virginia appealed to the Supreme Court.

If Biden is to achieve his goal of reducing US CO2 emissions he needs the Clean Energy plan. He has pledged to reduce our emissions 50% by 2030 and completely eliminate CO2 from our power sector by 2035.

The courts balance has changed in the last four years. Trump, with Mitch McConnell’s help, installed 3 new Supreme Court justices. We know where that has led.

We know that CO2 is causing global warming. Only Trump Republicans disagree, but then again they’ve supported Trump’s big lie and tried to overthrow the election. Even utilities know that their CO2 pollution is causing global warming. We know what the effects of global warming are. We know that we add millions of tons of CO2 to the atmosphere every year from power plants. We know that carbon capture and sequestration is a boondoggle, witness the collapse of the Kemper plant costing billions of dollars. We also know that Alito is a luddite refusing to believe that CO2 is a pollutant. We need protection of the commons.

While we don’t know for sure until they announce their decision, all the pundits say that in a 6 (conservative) to 3 (liberal) court, it’s not likely to be good news. Hopefully, the will rule narrowly and give Biden some options. But read Alito’s ignorant and arrogant comment above.

The Connection:

While the court is supposed to protect our rights as citizens and not make stuff up, this potential ruling is part of a pattern by a politicized court that is trying to dismantle any semblance of racial, climate and economic justice in our country.

Many of us are outraged by the US Supreme Court overturning Roe v Wade. But look at some of their other decisions. They recently ruled against stricter gun provisions in New York. They supported extreme Gerrymandering in Louisiana forcing black voters into one contortionist district in order to preserve five seats for the GOP. They are breaking down barriers to separation of church and state.

Jurisprudence aside, these decisions are a pattern of extreme right wing patriarchy. The court has overstepped and you can tie the court decisions directly to a flawed conservative moral hierarchy (SkyWaterEarth: Moral Hierarchy in Environmental Messaging.) Here’s a short summary.

According to George Lakoff (Moral Politics), conservatives have a father-centric or paternalistic worldview. The father decides what is right or wrong. His obligation is to teach his children right from wrong so they grow up to be responsible citizens. Here is the Conservative Moral Hierarchy according to Lakoff:

  • God above Man (Court decision on using public funds to support religious schools)
  • Man above Nature (Pending court decision on Clean Air Act)
  • The Disciplined (Strong) above Undisciplined (Weak) (Court decision on 109 year old New York gun law)
  • The Rich above the Poor
  • Employers above Employees
  • Adults above Children
  • Western Culture above Other Cultures
  • America above Other Countries
  • Men above Women (Court decision on Roe v Wade)
  • Whites above Non-Whites (Court decision on Gerrymandering)
  • Christians above Non-Christians (Court decision on coach praying with players)
  • Straights above Gays

The problem with this hierarchy is that it promotes a society in which only the rights of Christian straight white men of means have power and restricts the rights of the rest of us. When only some of us have rights, none of us have rights.

What We Can Do?

To be direct, there is little we can do with respect to the court decision on West Virginia v EPA. Expanding the court and eliminating the filibuster are likely fraught processes and may take time, even if successful. Likewise, AOC’s idea to impeach the justices that lied during their confirmation feels good, but is more a rhetorical challenge to the MAGA senators that voted for them. She is rightly changing the narrative. When they argue against it, they endorse the idea.

The first thing I believe is that we need to take care of ourselves. We have a long fight ahead. It is legitimate to feel down. Shout. Grieve. Take time. Heal. But remember that doomism is a tool that the opposition wields. They want you to give up. We don’t give up at this battle, just as those walking across the Edmund Pettus Bridge didn’t give up.

One bridge we need to cross as a next step is with those fighting for racial and economic equity. We still haven’t connected the dots between climate and justice and race. We may understand it, but understanding is not enough, only action matters. This means not only asking how people can serve our cause, but showing up for their causes. At their core, they are the same cause because our values are the same.

It’s an old tactic, but accelerating our climate work at the local and state level helps. 72% of the electorate believes that global warming is real and that we must do something about it. Show them how. Help them create a sense of accomplishment by engaging them in real local projects. Thank them. Reward them, and help them create an identity that others will want to aspire to.

Vote. But voting is not enough. We stopped fascism in 2020. The doom-sayers say the midterms are bleak. Don’t let this happen. If there are any climate activists out there that don’t believe climate is not now a political issue, I’d like to hear your thoughts. All our energy must be directed at November 2022.

Finally, share your stories. Lose the facts and reasons. Say what you believe. Only by connection can we create a collective identity based on empathy, care for others, inclusion, fairness, family, strength and effective government. Your story is important. It forms the human commons. We will succeed.

Thanks so much for what you do.


‘We are all connected. Savor the Earth!’™

L. Hobart Stocking
Facebook: @SkyWaterEarthConnected
Twitter: @SkyWaterEarth

* PS: Now that the decision is out, my opinion is still the same. This decision will significantly slow the US and consequentially, the world’s ability to slow global warming. There are those that will interpret the decision as fairly narrow and they are also correct. Here’s one summary for those who want to dig deeper into the details. https://www.nytimes.com/2022/07/01/briefing/supreme-court-epa-ruling-climate.html