Supreme Court took EPA case for ‘exactly the wrong reason’

As the Supreme Court hears West Virginia vs. EPA and teeters on the brink of a major decision-point for future carbon emissions in the U.S., Northwestern law professors caution the Court is further politicizing itself by taking up a case not based on actual rulings.

“This case stands as a symbol of an activist court intent on flexing its political muscle without regard to the normal doctrines of self-restraint that courts have traditionally followed,” said Michael Barsa. “Courts traditionally do not intervene until the EPA issues a rule that affects people in a negative way. But here, the EPA has issued no rule to judge.

Barsa is the co-director of the environmental law concentration at Northwestern Pritzker School of Law and a professor of practice.

“The case is purely hypothetical; about a rule the agency might issue in the future,” he said. “As such, the court should never have taken the case. It’s literally a case about nothing. Yet it might nonetheless have tremendous impact on the ability of the EPA to regulate greenhouse gas emissions.

“And that’s exactly why the court took the case, to make a political statement. That’s exactly the wrong reason to take a case. The court has been increasingly sensitive to being seen as a political institution, but by taking cases like this, they only have themselves to blame.”