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Laughing Gas

This Is Why the Supreme Court Shouldn’t Try to Do the EPA’s Job

Conservative justices this week confused nitrous oxide with nitrogen oxides and then insisted that they, not the EPA, were the final word on environmental regulations.

Smoke billows across the sky with the sun in the background.
Gary Hershorn/Getty Images
Emissions from a smokestack at the Essex County Resource Recovery Waste-to-Energy Facility as the sun rises in Newark, New Jersey, on January 21

It’s hard to overstate how bad this week has been for (among many other things) environmental regulations. On their own, the Supreme Court’s rulings on either Ohio v. EPA or Loper Bright Enterprises v. Raimondo would be bad news. Together they spell out a new reality where our country’s robed clerics—guaranteed employment until death—have final say over how and whether government agencies can do their job.

On Thursday, the justices ruled in favor of Ohio and several other states that challenged the Environmental Protection Agency’s plan to bring them into compliance with ozone pollution–control requirements. The justices’ ruling allows the EPA’s plan to remain paused as the states’ challenge proceeds through the courts. Laying out the context for that decision, Justice Neil Gorsuch—who authored the majority opinion—noted that the EPA “set as its target the reduction of the emissions of one ozone precursor in particular: nitrous oxide,” going on to explain that the agency “sought to impose nitrous oxide emissions control measures that ‘maximized cost-effectiveness.’”

Nitrous oxide is a colorless, odorless gas used for sedation and pain relief, commonly referred to as “laughing gas” and administered by dentists. It’s also a greenhouse gas and ozone precursor that can be generated by industrial activity, but Gorsuch presumably meant to refer to nitrogen oxides, the broader category of nitrogen-oxygen compounds that the EPA is trying to regulate through the Good Neighbor Plan. In total, Gorsuch—writing on behalf of the court’s conservative majority—mistakenly referred to nitrous oxide rather than nitrogen oxides five times in his decision.

That’s an easy enough mistake to make; I’ve written about nitrogen oxides a small handful of times insofar as they relate to federal environmental regulations, and had to look them up again to write this story. Like most people, and most judges, Gorsuch does not have specialized knowledge of chemistry or environmental science. His expertise is a fairly conventional one for Supreme Court justices: Georgetown Friends to Columbia and then on to Harvard Law, capped off by a Ph.D. in jurisprudence from Oxford. Despite these credentials, Gorsuch seemingly didn’t look closely enough at case documents to get the name of the chemical compound in question right. He didn’t google it. Opinions are circulated multiple times among the justices before being released to the public, and none of them—or their clerks—seemed to catch the mistake, either.

In just about any other document, mixing up nitrous oxide and nitrogen oxides would be an innocuous, even trivial typo; the Supreme Court eventually corrected the error. But on Friday morning, the man responsible for that error also effectively awarded himself and his colleagues veto power over ozone regulations and a whole bunch of other shit they know nothing about and don’t bother looking up. On Friday, the Court’s right-wing majority decided in Loper Bright v. Raimondo to overturn something called the Chevron doctrine or Chevron deference, which granted federal agencies the authority to interpret the laws that Congress passes. “In one fell swoop,” Justice Elena Kagan summarized in her dissent, “the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”

Here’s how the Chevron doctrine is supposed to work. “Sometimes Congress will use language that says, ‘Put together a system that requires companies to install systems of pollution control,’” Sambhav Sankar, senior vice president for programs for the environmental law firm Earthjustice, told me by phone. “What does ‘system’ mean? What Chevron said was, when that comes up, the agency gets to take a shot at explaining what ‘system’ means. When a judge isn’t sure of what something means, the judge defers to the agency’s definition. By removing Chevron, what Justice Roberts is saying is, ‘When you see that word “system,” judge, you’ve got to figure out what that means.’”

When members of Congress write laws, they employ their own staffers as well as those of committees and independent bodies like the Congressional Research Service, which is tasked with providing “timely, objective, and authoritative research and analysis” on a nonpartisan basis. Even with those resources, laws—and complex regulatory statutes, especially—are written to contain significant ambiguities, allowing for future developments and for agencies to put their considerable resources to work in determining how best to implement federal policy priorities. It has historically been up to the EPA, for example, to determine that when the Clean Air Act refers to stationary and moving sources of pollution, that specifically means smokestacks, cars, and a number of other devices. Judges have no relevant expertise to make such determinations but are now entrusted with that power should they hear a case concerning those definitions.

“Judges are by design isolated from society. Their staffers are, at best, recent law school graduates,” Sankar said. “They have no ability to do research. They’re stuck with what the parties to a case tell them. Agencies employ hundred and thousands of scientific experts who do years of research and stakeholder outreach to learn about the impact of their regulatory decisions.” Agency heads are also subject to the control of the democratically elected politicians who appoint them, who can be at least theoretically held accountable for their decisions and those of their appointees come Election Day. Judges—on the Supreme Court, most infamously—are comparatively insulated from democratic accountability. What’s worse is that right-wing operatives like Leonard Leo have spent years stacking the judicial branch with activist, ideological appointees churned out of outfits like the Federalist Society, fueled by donations from corporate polluters and other industries with a vested interest in seeing certain regulations kneecapped.

The silver lining in the court’s ruling on Friday is that the justices opted not to call into question every single decision made on the basis of the Chevron doctrine. Sankar emphasizes that the ruling isn’t automatically deregulatory. “Agencies are still supposed to be trying to figure out the best reading of statutes. Now Congress is taking risks whenever it writes a law. If the statute isn’t clear they can’t be sure what a court is going to think of it, especially with some of these aggressively deregulatory judges. If you’re an agency now you know that you are not going to get the benefit of the doubt anymore.”

Chevron’s destruction may well also be seen as an invitation to well-resourced industries and political actors to bring cases that can chip away at whatever rules they don’t like, particularly if they’re heard by judges who share their friends and/or politics. The worst, in other words, is yet to come.