What A Day - The Courts v. Climate (From our friends at Hot Take)

Episode Date: July 1, 2022

The Supreme Court issued a ruling on Thursday that limits the ability of the Environmental Protection Agency to combat climate change. Our friends at Crooked’s Hot Take podcast recorded such a great episode about climate and the courts this week that we decided to share the episode in this feed too. We’ll be back with our regular episodes next week - until then, check out this week’s Hot Take and be sure to look out for new episodes of that show every Friday.https://crooked.com/podcast-series/hot-take/

Hey WOD Squad, it is Priyanka. WOD had planned a break through the 4th of July holiday, but there was some news yesterday that we think is really important for all of you to know a little more about. The Supreme Court issued a ruling on Thursday that's gonna limit the ability of the EPA to combat climate change.

Our friends at Crooked's Climate Podcast, Hot Take, put together a really smart episode this week about the courts and climate and how we got to this point. You won't find people who know more about how these issues intersect than Hot Take's hosts Amy Westervelt and Mary Anais Hegler. This episode also includes some legal analysis from Leah Lippman who you know is one of the hosts of Crooked's phenomenal legal podcast Strict Scrutiny. So we're dropping that Hot Take episode right here in this feed today to help you understand another big and heavy day of news from the court. And if you want to keep getting smarter about climate make sure that We'll be back with our regular pods next week, but until then, we'll leave you with Mary and Amy.

Hey, hotcakes. Welcome to Hot Take. We recorded this episode a little bit earlier in the week before the West Virginia versus EPA ruling came out. We got to talk to Leah Littman from the Crooked Legal Pod, Strict Scrutiny. And we also talked about some of the context and background to the West Virginia versus EPA case. Now that the ruling is out, I just wanted to bring you a little bit of an update. It's not a great ruling. It's also not the worst ruling it could possibly have been. For the record, the Supreme Court really shouldn't have been hearing this case at all. It's about the Clean Power Plan, which is a policy that was never implemented. One big thing to pay attention to

here is that in his opinion, Chief Justice Roberts explicitly says this is a major questions doctrine case. That's very interesting for a couple of reasons. One, this case was brought as really part of the Republican Attorneys General Association's push to block any kind of climate policy. So whenever you see lots of different Republican states all joining in on a case together, that has usually been coordinated by the Republican Attorneys General Association, or RAGA. This is a group that receives a lot of dark money from the very industries that attorneys general are supposed to be regulating. The West Virginia versus EPA case was no different. It came together when Scott Pruitt was leading Raga and it was explicitly targeted at stopping the Clean Power Plan from going into effect. When Scott Pruitt, then as the EPA head under Trump, decided

to repeal the Clean Power Plan, he introduced the idea that really this was a major questions doctrine issue. So the major questions doctrine allows the Supreme Court to kind of look at any issue where an agency has done something that has so much political or economic impact that they feel they should weigh in on whether the agency was actually authorized by Congress to do that thing. So this case kind of bounced around different district and appeals courts for a while. And then when Biden won the election and said that he was going to look at this and come up with his own approach to regulating emissions, the same attorneys general who had filed the West Virginia versus EPA case took it to the Supreme Court to say, you know, you guys

need to rule on this before the Biden administration can implement a policy. So it's a very weird case. It's almost preemptively telling the Biden administration what they can do. At any rate, what this ruling actually says is very narrowly, the EPA cannot use Section 111D in the Clean Air Act to regulate greenhouse gas emissions. And honestly, it doesn't even quite say that. It basically says that they can't create a system that incentivizes a shift away from any particular type of power production. Their issue seems to be with EPA dictating what types of power are generated and kind of trying to push a transition of the whole energy system, which Robert says is not really their job, that they should stick to emissions and pollutants.

So again, not great, but it could have been a sweeping ruling that said the EPA can't regulate greenhouse gas emissions at all. And it was not that. In fact, this doesn't even say that the EPA can't use the Clean Air Act to regulate emissions. It's very, very specifically looking at kind of the way that it was interpreted under the Clean Power Plan. My personal take is that it's only a matter of time before we get a case where they can say the EPA is not allowed to regulate greenhouse gas emissions. I think the only reason that they reined it in here is that the case itself was so weird and it was such a weird situation for them to even be taking this case in that they couldn't do their worst. I don't think that that means that

this is the last we'll hear from the Supreme Court on greenhouse gas emissions or climate. But, you know, for now, it doesn't block that much. And there are still actually quite a few options available. And I think we should be prepared for a much bigger legal fight, which is why actually the context that we get into in this episode is really important to understand, because this is going to be a big, big battle. And I think people who want to see action on climate need to be a big, big battle. And I think people who want to see action on climate need to be prepared for it. So with that, here is today's episode. Hey, hotcakes. Welcome to Hot Take. I'm Amy Westervelt. Good one.

I'm the real Amy Westervelt. Good one. I'm the real Amy Westervelt. You say yours. Oh, wait. Yeah, you are. I'm Marianne E. Hegler. So, Amy, been hearing a lot of news coming out of the Supreme court uh from the roe decision to the gun law and even some news about miranda rights and all of a sudden i'm hearing people use the abbreviation scotus like we're all washington insiders it's true it's true it's it's um it's really i don't know it's heavy

i i feel like um there there's gotta be a better way to, you know, find out what's happening with our society this week than waking up early and like hitting refresh on the Supreme Court page every two minutes. But I feel like that is a thing that I've been having to do a lot lately. And oh, I have a great way to to keep up without doing all that. I just follow you on Twitter. Yeah, I feel like in like kind of in a similar way to like after the Trump election, a lot of people who were kind of not tuned into politics were suddenly very online and, you know, talking about it. You're seeing that in response to the Supreme Court right now. But kind of, you know, rightly so, because a lot of people's basic rights are really on the line right now. Yeah. I mean, I've been side eyeing the Supreme Court

since the 2000 election. Yeah. But I feel like we heard about the right wing and Trump in particular reshaping the Supreme Court for years, but I'm not sure folks knew exactly what that meant. And now we're really starting to see the consequences. That's right. So I think that, you know, people would talk about how Trump was appointing all these judges, not just the Supreme Court justices, but all throughout the judicial system. And I don't think that people and vaccine mandates on planes, for example, that was a Trump appointee in Florida. So these folks are now starting to have like a really major impact on all of our lives. And they're really starting to shape, you know, climate policy in a big way, too. So we're taping on Monday, June 27. The Supreme Court was supposed to issue a ruling in a big climate case today. That case is West Virginia

versus EPA. They have not released their ruling yet. And they're being a little coy, typically coy about when they might release it. It is still a long shot, but still a possibility that they will say, we actually are not going to issue a ruling on this. They could still say that. And they really shouldn't because it's this weird case where, like, the whole argument is about a policy that was never actually implemented. It was repealed by Trump and replaced by something insane. And then Biden scrapped that and was like going to make his whole own other thing, but hasn't actually managed to do that yet. And this case is saying, well, actually, technically, the EPA is not explicitly authorized to regulate greenhouse gas emissions under the Clean Air Act, you

know, because the Clean Air Act was written in the early 1970s. So it didn't mention greenhouse gas. Yeah. Yes. I mean, I want to take a quick minute to talk about the Roe decision and just like the way that that's been playing out across the across the discourse. So I don't know what what have you been seeing that's sticking out to you? There's a lot like I think that, you know, I'm seeing I'm seeing people kind of try to put this

in the context of other rights, try to guess what will happen. Like, will the Republicans pass a federal ban on abortion as soon as they get power? Is there a way for the Democrats to prevent that from happening? I'm seeing a lot of suggestions that basically, you know, we, we do kind of a threefer and like abolish the filibuster, codify Roe into law, and then pack the court so that they can't overturn it. And my add to that is also pass a law that says no one else can pack the court after you because you know that like they're just going to be like – it's just going to end up being like 200 judges. Right. Right. Right. Yeah. I don't know. It's weird because it's like people have been talking about what will happen when Roe is overturned for at least like two or three years now, right?

And so in this weird way, there was like all this preparation for it. But I still feel like, you know, folks were shocked. Yeah. I mean, there were a lot of fundraising emails were prepped. That's true. That is true. Yeah. Yeah. Yeah.

I saw this viral video of a young woman being like, yeah, my rights shouldn't be your fundraising talking point. I saw that. Yes. Yeah. The Democrats are going to lose a lot of young voters if they do not get this shit together. Like, honestly.

They have got to do fucking something. It almost seems like they're doing it on purpose at this at this point like that's the thing that has really jumped out to me too in terms of like how how it intersects with climate like i mean we we've talked before about how reproductive justice intersects with climate but just purely from a political standpoint i'm like like on climate on this on trans rights on so many on gun reform it's like everyone is just screaming for the democrats to fucking do something and stop right thinking that they're living in this time where like politicking and civility is gonna do it right or like it's not a performance,

honey. It's a job. You know, like you're not on Broadway. I don't need you to read me a poem. I need you to get some fucking work done. The fucking song

outside the Supreme Court steps too. I couldn't take it. No, I refuse. I refuse to watch the clip. The other thing I've seen a lot is people being like,

I will aid and abet people in search of abortions. People, if you're going to commit a crime, don't tell the internet. Yep, exactly. Like you're pre-snitching on yourself. Exactly. Exactly. I've also seen a bunch of people be like please don't trust these people that are

saying this right for you because yeah if i'm about to like take that procedure to the last person i'm gonna trust is a stranger from the internet tweeted through it yeah not even just a stranger on the internet but like you're tweeting through it yeah yeah yeah like yeah what part of the game is that yes real g's move in silence shut the fuck up exactly exactly it's true it's true i saw this one this one woman who her account got hacked like the tweet from her was like i was scheduled to have an abortion tomorrow and now it's canceled and I hate to do this, but I need the funds to like get to another state or whatever. And like, here's my Venmo. And then immediately under it, she was like, oh my God, I was hacked. This is not me. Don't send

money to this person. Like, you know, all of this. Um, so I'm sure there's plenty of that kind of opportunism going on as well. Uh, but it's, you know, I think it's really scary. I think that the fact that like they're extending it to miscarriage and ectopic pregnancy and all of these things, IVF, like it's, it really is genuinely about the bodily autonomy of, you know, people with uteruses. Like there's no there's no other way to slice it, you know, and it is absolutely the government exercising control over that. Exactly. Exactly. And I mean, the other thing that I've been seeing that's getting on my nerves is and I I've seen so much of this since Trump got elected, is Welcome to the Handmaid's Tale. Because I don't know if you know this, but there are no other books. There's no other books, Amy. a woman named Octavia Butler and she certainly never wrote Parable of the Sower

and Parable of the Talents the sequel that predicted all of this including Donald Trump including the Make America Great Again slogan. I mean uncanny like uncanny I just started reading it again because I was

like it's been a few years and like we've lived through a lot of Parable of the Sower-esque stuff. I feel like I should read it again. It is fucking wild how accurate she was. Like, wow. It is eerie. It's really like, am I reading a book or am I reading my journal? Yes.

But Handmaid's Tale somehow is the book that people come to. I ain't seen no bitches in no red cloaks running around nowhere. Also, Handmaid's Tale completely fucks up on climate change.

Right. Octavia Butler is the one who made that real. That's right. Not Margaret Atwood. Octavia Butler is who Margaret Atwood

wanted to be. And you can at me, you can send me all the hate mail you want to. Again, send it to BKAHN at protocol.com. All hate mail. Like just just to sort of like kind of list them a little bit. We have just in the last couple of weeks seen the Supreme Court say that like bribing politicians is totally cool now. Dark money, free for all. Open carry guns. Like, are you even an American if you can't carry a gun out in public? No. No.

Prayer in schools. Love it. Yeah. and overturning row now we're waiting to hear if they're if they're going to say that you know um the epa doesn't really have the authority to regulate greenhouse gas emissions and that is all happening against the backdrop of the January 6th insurrection hearings, which like, again, are questioning in a big way the legitimacy of the president who appointed three of these justices. Exactly. So I've been binging the January 6th hearings because I've been running around a bit too much over the past couple of weeks and didn't true crime binge. Yeah. I didn't get to watch them in real time. So I've been trying to like catch up. And one of the things that's really sticking out to me is that I think

we forget that January 6th happened the same day that Georgia elected its first two Democratic senators in forever. And like the emotional roller coaster of being like, oh my God, Senator Warnock too. Oh shit, they broke into the Capitol. Yes, yes, yes. It's true. Cause I remember watching, you know, everybody was kind of like watching

to see what was going to happen with that Senate race to see if the Democrats would take the majority in the Senate or not, right? So like, yeah, and I mean, that's the other thing, too. Like, I know that Joe Manchin and Kyrsten Sinema have been a giant pain in everyone's ass. And I know that, you know, we only have a majority, not a super majority. I saw someone joking on Twitter about America being an MLM, like a multi-level marketing corporation, because they're like, well, now, okay, you've got the majority, but what you really want is the super majority. Always.

Always. Like, no. But I think it's like, come on, man. Like, you cannot have all this shit happening when Democrats have control of the entire legislative branch and not like take any responsibility for it. Yep. Yeah. Yeah.

All of that brings back so much imagery, right? Because there's only been a handful of Black senators ever. There's never been a Black senator from Georgia. And there are very specific reasons for that. Like the first handful of black senators or black representatives were elected right after the Civil War. And they were, you know, kind of run out of office by the Ku Klux Klan. And so that's how we got the Insurrection Act, which is the exact framework that they're using for the January 6 hearings. And one of the things I'm enjoying the

most is Benny Thompson's accent. He is so good. He was kind of boring for this moment. And, you know, I'm sure, I don't know, I should probably know more about Benny Thompson, considering how long he's been in office and as a Mississippian. But I'm sure there's probably some policies that I don't agree with him on. He's probably a bit more moderate than me, but he is really taking center stage at this hearing. And it's great to have the most famous, invisible politician from Mississippi be him, because that is who I think represents the South. And like, you know, he comes from people who have fought for a very long time.

And this is what that looks like in practice. So, and also his accent is just, ugh, molasses. Yes, totally. I could listen to him. Yes, I could just, I could listen to him narrate like, you know, my grocery list and I would be like, pleasant. I could listen to him read the phone book. I have really enjoyed that. However, the stuff that we're learning is super harrowing.

It also just goes to show how coordinated all of this shit was and how we underestimate these people to our peril. That's true. You know, what really has been striking to me, especially watching those hearings while the Supreme Court stuff is going on, is that, like, I think that that people assume that the fact that, you know, there was all this crazy stuff going on and all these rules that were broken and norms that were broken and that, you know, these like Trump should have never even had these Supreme Court picks. And, you know, McConnell should never have been able to block Obama's Supreme Court pick and all of that stuff that like that will somehow stop it from happening. Right. I think it's like, oh, it was laughable and illegal they don't give a fuck yeah it's like yeah it was but yet these people are still supreme court justices who are remaking the country that we live in in a very big way exactlyusing shamelessness for stupidity. Right. Right. Yeah, it's like, I mean, actually

what they're showing is that if you don't give a fuck about norms and civility, you can do whatever the fuck you want. And the Democrats are like, but what about tea time? You know what I mean? I'm just like, what the fuck are you doing? Like, stop trying to be mannerly with these

people. Right. I just, I'm not saying, you know, I don't know. I honestly, I do. I feel like,

I feel like the whole, like when they go low, we go high thing is just, is actually really like a toxic idea. Cause like it's toxic positivity. If you go high, when they go low, then they're just going to kick you in the fucking balls.

And that is what they've been doing for the last four years, five years, six years now. You know, right. My whole life, honestly, I feel like, you know, watching these decisions come out of the Supreme Court and like watching all these rights get peeled away. And that against the backdrop of the January 6th hearings, like what becomes very clear is that life is definitely worse now than it was before. You know, like it's worse now with Biden. But it would have been so much worse had Trump won, had Trump actually succeeded in his coup. And that's like the rock and hard place that we're in between right now. Right. I am seeing some people kind of connecting the dots on abortion in particular, and actually even on climate where it's like,

the only thing that will stop this is a massive majority. Good guy with a gun. Good guy with a gun. No, like a massive majority in Congress, you know, or I'm starting to see people which I think is necessary, too, because honestly, I'm just like, okay, like, just so you know, it's not going to stop at these things. Like even with West Virginia versus EPA, if the court has a sweeping ruling that's like, yeah, the Clean Air Act can't be used to regulate greenhouse gas emissions, the next thing they're going to go after is air pollution regulations in general. And after that, it's going to be the EPA. I have had now two separate right-wing operatives tell me flat out that the goal is getting rid of the EPA entirely.

And they will absolutely fucking do it. And guess what? The EPA has only existed since 1970. And what, you know, we just saw Roe get gutted. So the idea that the EPA is somehow safe is ridiculous. So it's like, but so honestly, to me, I'm like, okay, two things. One, yeah, sure. Like if we can get a massive majority in the government in this short of a time when we've ignored massive constituencies for years, go for it. start thinking about what it looks like to push for climate action in a world that doesn't include the EPA, or in a world that doesn't include politicians that want to act on climate. Like, the political system is not the only way to get things done. And like, I just feel like people need to use their imaginations a little bit. Just a little. Just a little bit. So we're going to get into more of the Supreme Court stuff through your reporting, Amy.

But first we're going to hear from Leah from our fellow Crooked Pod, Strict Scrutiny. Our shows joined the Crooked Network the same day, and Strict Scrutiny has had their hands full with the current Supreme Court session. Leah is going to walk us through some of what makes this current court unique, some of the big decisions this session, and what the options are from here. That's right. Leah Littman is actually a law professor on top of being a podcaster. I'm pretty sure her day job pays her bills. So she's like the perfect person to kind of just set the stakes for us.

We'll be back with her right after this break. Leah Lippman, thank you for joining us. If you are not already subscribed to Leah's podcast, Strict Scrutiny, go fix that. Critical listen right now as we're getting new and increasingly crazier rulings every day at the moment. Thanks for being here. Thanks so much for having me. I'm excited to be here. Yeah, yeah. So we were, of course, expecting this West Virginia versus EPA decision this morning. We're taping on Monday. By the time this episode comes out, we may or may not have this ruling. So I guess, yeah, I'm just curious what, if anything, you're looking for in that ruling. And also, I'm hoping you can kind of explain to people how weird it is that they're ruling on this case in the first place.

Yeah. So I guess I'll start with the weirdnessness because one thing I'm looking for is how they're going to address that weirdness. So this case arose because basically the Trump administration sought to limit the EPA's ability to address climate change. And what it did is it adopted a regulation that said, we don't think that under the Clean Air Act, the EPA has the authority to do some types of like generation shifting policies, basically policies that try to create an incentive or encourage, you know, producers of greenhouse gases to move, you know, their method of producing energy from one form to another. And a court concluded, actually, the Trump administration is wrong about what the Clean Air Act means, and it didn't comply with the required procedures for how agencies should make rules. And so, you know, we're going to undo that rule and tell the agency to try again. But that happened basically around the time of the transition to the Biden administration. So then this case gets sent back to the agency and

the agency says, well, we're going to come up with a new rule about how we think we can get these stationary sources, these emitters of greenhouse gases to reduce their emissions. And some Republican-led states said, wait a minute, we don't actually want the Biden administration to regulate greenhouse gases. So they asked the Supreme Court to review this case and basically say, we think the Biden administration is going to do something illegal. We want you to stop them before they do that. And that's like an unheard of posture in a case challenging an agency rule, because usually you wait to see what the agency does. And then you ask, does that agency rule comply with the statute? You know, is the agency

authorized to do that thing? But here we don't, we don't know what the agency might do. And so this question is being asked very much in the abstract. Yeah. Yeah. I mean, it sounds, it seems to me like just from the oral arguments that the major questions doctrine is going to come up in this ruling. Could we have you define what that is for people and why it would come up in this ruling. Could we have you define what that is for people and why it would come up in this case? Absolutely. So the major questions doctrine, it's a little bit hard to define it because the Supreme Court honestly hasn't really defined it. It's been kind of cagey and used it in different ways. On some level, it's come to stand for the idea that if an

agency does something that strikes the Republican justices as kind of a big deal, then Congress has to specifically authorize that. And that's only a slight exaggeration because at the oral argument in this case, Justice Brett Kavanaugh basically summarized the court's prior cases that way. He said, look, the question is whether an agency has done something, quote, surprising. Now, in the court's cases on the vaccines and the CDC's, the Center for Disease Control's, eviction moratorium, they framed the major question as follows. When an agency does something of economic or political significance, then that thing has to have been explicitly authorized by Congress. So basically, the major questions doctrine is a rule that an

agency can only do, you know, economically significant, politically significant things when Congress explicitly and specifically allows them to do so. You know, I'm happy to talk about why that's kind of like a big wrench in agencies' ability to address problems, but that's kind of what it is. Well, actually, agencies aren't constitutional. Sorry, that's my conservative bro voice. I was about to say, is Neil Gorsuch on this podcast? I didn't realize you had him as a guest. Can we talk about, so we're again talking in this kind of in-between zone. We've got the Dobbs verdict, which is overturning Roe. We've got the gun verdict that says, nope, you have a constitutional right to conceal a firearm now, apparently. And then just today, we got this one that protects prayer in schools. Are there other kind of big structural rulings that you feel like have not gotten attention in this session?

So frankly, I think that the climate case has been undercovered. I think that case will have major implications for the federal government's ability to tackle climate change in the near future and also the administrative state more broadly. I think another big case is the Remain in Mexico case. That's a case about the Biden administration tried to end what was just a humanitarian disaster of a Trump immigration policy that forcibly returned individuals seeking asylum to Mexico after they crossed the border. And the Biden administration wanted to end that policy. District Court said, no, you know, you're basically required to continue it. Court of Appeals said the same. So that's another big case that I'm watching. There's also a really big federal Indian law case, Castro Huerta, that's super important because it concerns the kind of continuing force and implications of the Supreme Court's major case from McGirt versus Oklahoma about how, you know, the big chunks of Oklahoma, you know, were still part of a reservation because the boundaries of the

reservation remained intact. And that case was decided while Justice Ginsburg was still on the court. It was 5-4 with her in the majority. And we don't know Justice Barrett's views on federal Indian law and whether she will respect the precedents that Justice Ginsburg was a part of. I'm really curious to see which way she goes on the Brackeen case in the next session, too, because that one is related to the Indian Child Welfare Act. I know you know this. I'm just saying it for listeners. But like, I don't know. I feel like there's going to be some really just unfortunate stuff coming for tribal sovereignty with this court too. Yeah. And I think that Castro Huerta case could be a sign about where Justice Barrett might be on the Indian Child Welfare Act case for next term.

Yeah. Yeah. The thing that the wrench in the works on that one, I think, is her personal role as an evangelical adoptive mother. Like, what is it, like three of the justices have, are adoptive parents? And I don't know, I feel like there's like personal stories that are part of that case that like, I'm not sure how they'll sway them on that. What's your take on the legitimacy question and the fact that, you know, you are seeing these really low approval ratings for the Supreme Court. You're seeing a lot of people calling them an illegitimate court. I don't know. Does that matter? What might that do? I mean, yes, it matters in several different senses.

You know, the court is able to enforce its judgments because people respect the court, because the political branches are willing to respect decisions of the court. And the court is pressing at the limits of its legitimacy by departing so starkly from where, you know, the views of most Americans are, you know, its decision over ruling Roe isn't supported by a majority of the public, and it's reaching decisions that are pretty out of step with where a majority of Americans are. But the, I think, unfortunate reality is, our political system, you know, the one that's set up by the Constitution is itself doesn't always have to be super concerned about public opinion, it has to be concerned about the public opinion that is, you know, factored through or filtered through the electoral college and the Senate, you know, and if and to the extent the court's SB8 to evade Supreme Court decisions with which they disagree. But the reality is the Supreme Court is an

institution of our government like any other institution. And yes, they do partially depend on, you know, trust and buy-in from people. And the court is vastly spending any and all capital it might have. Well, can you please make our day and tell us that Clarence Thomas could be impeached and maybe in Coney Barrett too? I mean, these things are all hypothetically possible. Let's roll with it. Ally Hart was possible. So, yeah. Theoretically possible.

I probably wouldn't bark your calendars for those impeachment hearings anytime soon. But I think the reality is that, like, there are a lot of things, a lot of things that are theoretically possible and fall within Congress's powers. You know, Congress, if it wanted to, could expand the size of the Supreme Court tomorrow. Congress, if it wanted to, could eliminate the Supreme Court's jurisdiction over certain types of cases. But, right, like we don't now have a Congress that is willing to do that. But, you know, that possibility, I guess, is something that might give some people comfort. You heard it here. Clarence Thomas can and should be impeached. He's the worst. I was listening to your last episode and I heard you talk about how Clarence Thomas doesn't get enough attention slash credit for being sort of like the intellectual godfather of this whole right wing judicial strategy.

And I was like, yes, yes. I hate him so much. I just I feel like Thurgood Marshall is going to come and haunt him. I mean, think about how much the Republican Party changed the court by replacing Thurgood Marshall with Clarence Thomas and Ruth Bader Ginsburg with Amy Coney Barrett. Right. Or stealing the Scalia. See, it was Scalia who died recently. Right. Yep.

Yeah. Explain why people like John Cornyn are suddenly referencing Plessy versus Ferguson and Brown versus Board again, that there are people talking about the Dred Scott decision, all of that stuff in Dobbs invoked Brown versus Board of Education, the decision outlawing segregation in public schools, which overruled Plessy versus Ferguson, the decision upholding separate but equal. The decision overruling Roe said, look, it's no big deal to overrule constitutional decisions. Brown overruled Plessy. And if you say we can't overrule decisions, then you're saying, right, you would uphold Plessy. So that's partially what Senator Cornyn is invoking. I mean, it's a completely nonsensical analogy. The joint dissent in Dobbs completely dispatches it. But that's that's one thing that's happening. The second thing that is happening with respect to Dred Scott is in the gun regulation case, Justice Thomas actually

relied on some statements in Dred Scott as evidence about what the Second Amendment and 14th Amendment mean. So he said, look, in Dred Scott, the court said individuals who are descended from Africa can't be citizens because if they were citizens, then they would have the ability to carry guns in public. And therefore, the court and Dred Scott recognize that carrying guns in public are, you know, a piece of what it means to be a citizen. And it's like, look, Dred Scott is totally discredited. The 14th Amendment, right, was enacted to repudiate Dred Scott's views of the Constitution. So why are we relying on this? I don't know. But that is part of why Dred Scott is trending. And the third thing I would say is, look, you have to understand this is it's all just kind of part of a troll, you know, them like co-opting the narrative of racial justice and equity toward these extremely regressive ends.

Right, right, right. Oh, Lord. All right. Well, sorry. Sorry you asked. No, no, we wanted, that's what we wanted to know. Thank you so much. Awesome. Thanks again for joining us. And we look forward to following all of your analysis of the upcoming rulings. Likewise. Thank you. Take care. that was bleak um because like i kept seeing dred scott's face as y'all were talking because i think it gets lost that that's an actual human being sometimes it's really disturbing that that's getting thrown around right now. I think it's also because like Dredd is not a typical name. I'm not sure that people realize that that was like a person. So at the time he was not recognized as a person. And so yeah, it kind of

gets lost. It like you could think it's Dredd versus Scott or something. You can kind of forget that this is a person who was like, I should have the right to my own body, to my own life. At that point, at best, he would have been three-fifths of a person. Right. So many layers of disturbing that we're hearing that referenced, that people, even today when they're referencing that case, don't necessarily know that Dred Scott was a person fighting for the right to be a person in control of his own personhood, you know, and that then you have Justice Thomas referencing that case as valid precedent to say that being an American means being able to carry a gun around in public. Just a lot of a lot of gross shit happening. So I know, you know, that the Roe decision and the West Virginia case are kind of on everyone's radar.

But I just want to bring folks attention to a couple of other cases. So, for example, just a couple weeks ago, the case FEC versus Ted Cruz for Senate. The court ruled that basically candidates can give their campaigns personal loans and then pay themselves back with interest. Why am I not surprised that Ted Cruz is in the middle of this? So wouldn't that mean that a donor can just give money to, let's say, snitch shoes and then he can give it to his campaign so it's totally untraceable?

Yes. Yes. Okay. Is there a cap on how much money they can move that way? Nope. Nope. So if not, and hear me out here, what's stopping these climate billionaires from not necessarily bribing, but imbibing certain senators, perhaps from... That's a good idea. Actually, it does kind of make me wonder.

I mean, like someone like a Ted Cruz, for example. I mean, I don't I guess I feel like he's pretty ideologically driven, but I also feel like he is really driven by fame and money. So I'm like, is there a universe in which like, you know, Jeff Bezos could bribe Ted Cruz to like change his whole ideology? I don't know. Well, I didn't say bribe Joe Manchin. I didn't say that. It's not a bribe anymore, Mary. It's perfectly legal campaign finance strategy

so whatever I I didn't say to do it I didn't say to do it but could it be done he really is kind of like driven by money I don't think he's listening to constituents like I know that um yes okay West Virginia is a coal state but coal hasn't been like a a good part of that state's economy for quite a while and like you know no there are are other people in the state that that don't want the the coal folks to continue to get handouts so yeah an interesting proposition very interesting it's just an idea that I didn't propose. Yes. It's just out there. It's a thought exercise. You know, it's, yeah. Just float it by and here we are.

Yeah. Yeah. So, of course, you know, what this points to is even more dark money in politics. But there was another case in the January session that I feel like really skated under the radar for folks. And it was called Americans for Prosperity Foundation versus Bonta. So Bonta is the Attorney General of California. And basically, California adopted this statute several years ago that said that you have to, despite the fact that Citizens United made it possible for people to give political donations anonymously, and for corporations to give political donations anonymously, California still had this law in the books that basically kind of forced you to do it anyway. And a bunch of these big right wing think tanks have been trying to get rid of this for a long time. They've been saying it's like infringing on corporate free speech and infringing on right to privacy and all of these other things. And that is what this case was about. So the Americans for Prosperity Foundation is the foundation arm of the Koch's state politics group, Americans for Prosperity. So this is the group that goes in and really messes with state elections on behalf of the whole Koch network.

There's a whole documentary about this, about what they did in Montana, that I actually, I highly recommend. It's called Dark Money, but it's about what Americans for Prosperity did in that state. But they do it all over. And so, you know, all of these groups have been trying to get rid of this law in California. They file this case. They get a whole raft of what are called amicus briefs, or sometimes I hear people call them amicus briefs. I don't know which one is right. All I know is it's Latin. And so they got all these people saying, you know, yeah, this is a huge issue. And like, the court should look at this law when they appealed the case to the Supreme Court. Yeah, the front of the court briefs. I kind of know what those are,

but I have a feeling there's a shit ton that I don't know. So these came about amicus. Yeah, let's go with that. Or amicus. Amicus. Okay. So these came about a long time ago. And initially, it was a good idea. It was like, you know, I don't know how many court documents you read, but like, they always reference a whole bunch of other cases, right? And it's like in this case, they said this and it's usually in the vein of, you know, you should rule in this way because that's in keeping with what's happened in other cases. It's not necessarily easy for lawyers to pull that together now, but it's a lot easier than it was, say, 200 years ago, when the internet didn't

exist. And not every library had like every case that had ever been, you know, argued. So you would have these friends of the court who would write a brief for the judge explaining what had happened in another similar case. And, you know, it was kind of a helpful thing. Nowadays, these groups will get kind of involved in different cases that are aligned with their mission in some way or another. And they will hire a lawyer to write a brief on their behalf to kind of like throw their weight behind a particular type of ruling in a case or increasingly they're they're starting to be um they're starting to show up like when cases are appealed to the supreme court so as like a method of trying to

convince the justices to take a case which is is fairly new. And the other new thing is that since 2010, which is when the Citizens United case happened, there's just like no transparency in who's funding these things. And the court doesn't really, like the court sort of has transparency rules, but they're like, they're kind of dumb. They I mean, they basically say that like, if someone paid for the like manual preparation of a brief, so like the printing of it and the distribution, then you have to disclose who that person was. But it doesn't say that like, you have to disclose that, you know,

the lawyer who wrote this brief was hired by the Cato Foundation, you know, Americans for Prosperity or whatever. So it's kind of meaningless. Anyway, so when I first started looking into this, honestly, it didn't make any sense to me because I was like, well, who cares if there's more of them? Because like, it's not like a judge is going to be surprised to learn that this conservative think tank is against regulating businesses. And like, why would that sway them in any particular direction? So I asked Senator Sheldon Whitehouse about this. He's this is the senator from Rhode Island. He's actually the only politician that's been talking about this. And he's been really like banging the drum about how, you know, we need to this is like this kind of undercovered area of dark money in the courts that we need to get rid of. Here's a little bit from him kind of explaining

why, why this is a big deal. And also like how it showed up in this particular case where the Americans for Prosperity folks were trying to get rid of this disclosure law in California. They pick Americans for Prosperity Foundation as the petitioner to try to get this dark money constitutional right. And when they do that, at least 50 dark money amici showed up at the certiorari stage, at the cert stage, to push the Supreme Court to take up this case. And by the way, it lurked for a very long, strange period of time at the Supreme Court. And they only took it up once they had Judge Barrett giving them six. And they only took it up literally two days after the attack on the Capitol when everybody in America was looking elsewhere. Wow. January 8th, they took the case up. So they've got the case of the twin

of the Koch brothers political battleship supported by 50 dark money front groups that they take onto their docket in the shadow of the attack on the Capitol. And sure enough, they create a constitutional right to dark money for this group. So, yeah, I don't know if you read this before, Mary, but like they basically like snuck this case through while the insurrection was happening. Of course. case through while the insurrection was happening of course like they like waited for amy coney

barrett to officially be on the bench and then they took it up and then they like did all this shit like while everyone was distracted by the the insurrection and also wasn't clarence thomas's wife like hard at work on the insurrection? Like take the personal day to support your wife. It's true. What the fuck? I thought he was a white guy. She was hard at work on that while he was hard at work making sure that all those groups would continue to have limitless dark money at their fingertips. They're a real power couple.

Did the Proud Boys get like dark money? I would be very surprised if they didn't. Right? Me too. Yeah. Like, they're too helpful to those groups for them not to get any support at all. You know? Like, I just.

Or maybe they only take white money. What else? So good. That was a fascist dad joke. Good one. That was really good. Yeah. So I hadn't heard about this case at all.

That's what really jumps out to me about the Supreme Court coverage. Like, you have to know where to go for it. And then correct me if I'm wrong, but I don't see a lot of people interpreting what any of these rulings mean for climate. Oh, yeah, you're not wrong. I don't think that that happens really hardly at all. I mean, there's like a pretty small pool of legal reporters in general. And then a lot of them work for law publications. And a lot of the law publications are very, very niche. And they're sort of they're behind a paywall and they cost it's like, their main audience are law firms that will pay like 1000s of dollars for the subscription,

you know what I mean? So it's like, the best law reporting is often behind a massive paywall. And then most of the time when you have, which is, you know, there are definitely people at some of the major papers who are covering particularly the Supreme Court and various other cases. But most of those people are experts in the law and not experts on climate. So I don't know, like even something like this case where the Koch brothers are involved, none of the coverage I saw mentioned climate. It totally flew under the radar because of what was happening, you know, with the insurrection at the time. Yeah. Yeah. I mean, to be fair, court documents are not exactly cute and cuddly. Not everybody has a degree in legal ease, but it's a skill to acquire that I'm glad you have. The folks that are really good at like that understand constitutional law and, you know, know how to read the court documents or whatever are often not that up on all of the climate policy stuff and then vice versa. Like I keep seeing climate reporters really misinterpreting the West Virginia versus EPA case because they don't know the law part too.

So that is definitely an area where I feel like it would be cool to see more papers put like a duo, like a law reporter and a climate reporter on it yeah i don't know i really i wish we would see that more with climate in general but yeah yeah i will just also say that i feel like the burden of communicating about that case falls also on elected officials and they they're very good at communicating the law when it comes to Roe versus Wade that's true why is it not incumbent on them to learn how to do the same when it comes to climate that's very true because also like the the other thing in terms of um making this stuff

accessible is like literally physically a lot of the court documents are not accessible like you can download the ruling, you know, the Supreme Court ruling. But if you wanted to see like, what was the original complaint and who was involved and all that kind of stuff, then then you're talking about this system called Pacer, which is like this insane system that you have to like have a membership to and you have to pay for every page of documents that you see even if you just view them online you still have to pay per page which I don't know I'm like these are supposed to be publicly available but there's this huge you know barrier both in

terms of cost and in terms of like knowing that that system even exists and then how to access it and then how to use it because it's not straightforward in any way. It is incumbent on elected officials to inform and educate their constituents about what is and is not important and what the stakes are. And I'd like to see them take that more seriously when it comes to climate instead of just being like, oh, well, people don't care about it. Well, like, what is your job? It's weird. It's like the way that I've seen public officials and even like climate advocates talk about this case. It's like, it's like they'll get really into the weeds of, you know, what this means for regulatory agencies in general and what it means for the Clean Air Act. Or they'll go totally the opposite way and go, this case is going to make it illegal to regulate CO2 emissions.

And I'm like, these are both wrong. Right. But this is what happens when all of the discourse happens on Twitter, which, you know, is a useful tool, but it's where the discourse goes to be flattened. It's true. Which reminds me um what's orange and sounds like a parrot what's orange and sounds like a parrot um i have no idea what is it a carrot a carrot that was so much easier than I thought.

I was really trying to make it complicated. Sometimes you just, like, got to go with the flow. All right. So obviously the Supreme Court has a major impact on climate policy, but there's lots of other ways the courts can enable or block climate action too, right? Like these Raga guys you're always talking about, your favorite boy band from the 90s. Yes, yes, they are. Okay, yes. So I consider it a personal victory that the New York Times finally mentioned fucking Raga this past week. So Raga stands for, they did, they actually mentioned it in a story about – so like what I'm – I'm constantly harping on the fact that if you see like more than three Republican attorneys general show up in a case, you need to be talking about the Republican Attorneys General Association, which is Raga, because they coordinate these things.

These are like coordinated efforts and they're basically like the litigation arm of the Republican Party. And I consistently see coverage of cases where they're like 17 conservative states, you know, say blah, blah, blah, that never mentioned this whole machine operating in the background, which is very annoying. But the New York Times actually talked about it. So and they talked about it in the context of West Virginia versus EPA, which is a total Raga case. So just a quick little history of Raga. It started as a reaction to the tobacco litigation in the 1990s. At the time, a bunch of Democratic attorneys general brought various cases against the tobacco companies for withholding information about the health impacts of smoking. Eventually, there were so many of these cases that the industry opted to settle that became this thing

that's called the master settlement. And they had to pay like 10s of millions of dollars into a fund that all of these different states that had filed lawsuits kind of divvied up amongst themselves. And at the time, this was a pretty novel strategy for attorneys general to kind of like, you know, work together in a way to coordinate in this way. And the Republicans, it's like one of the few times in recent history that the Republicans have kind of been like, well, that was a good strategy. We should do that. And so they started this thing. So it was the attorneys general of Alabama, Texas and South Carolina created RAGA. And then sort of the first order of the day was to get more Republican attorneys general elected because at the time they were also like vastly outnumbered by the Democrats in the attorneys general's offices. So it was like, I don't know, it was almost two to one,

they were really heavily outnumbered. So they were kind of like, okay, step one, let's get more of us. And that totally worked Republican attorneys general now outnumber Dems, but just barely like I think this is something that actually Democrats should be paying attention to and doing something about. But then in 2010, when the Citizens United case made dark money a thing, Raga became this crazy litigation machine that was receiving like tens of millions of dollars from all of these different industries. So it was the Cokes, coal people, tobacco still, lots of pharma, lots of like industries that were worried about class action suits and heavy regulation. Yikes. So for folks who don't know, Citizens United was a big Supreme Court case that basically said corporations have the same rights as individuals to donate money anonymously to political causes.

I like to think of it as Mitt Romney's campaign talking point. Remember when he was like, corporations are people, my friend. And people were like, that makes no sense. He's legally right, but also makes no sense when you say it out loud. Yeah, it's crazy. Corporations are people and money is speech. That's like the easiest way to boil down. Up is down, air is water.

Yeah. Yeah, it's crazy. Because what that does is it means that, you know, a company or an industry group can donate tens of millions of dollars to a particular candidate anonymously, which means that then when that candidate does their bidding in office, people can't be like, oh, well, this person's in the pocket of big oil because they can't access those records. There's been plenty of like there has been a fair bit of leaks around funding of various organizations. Actually, there's been a few leaks around the funding of Raga. That's how we know that like, you know, the Koch brothers are big donors and things like that. But it's, you know, it's just like a way to make corruption less transparent. That's it. That's it. You know, I like for my corruption to be opaque.

Yeah, yeah. But that's only when I'm the one doing it. Let's keep this behind the scenes. It's unseemly. So anyway, people have been trying to get that ruling overturned ever since because honestly, I do feel like you see this insane increase in, you know, just this corporate takeover of government happening from that ruling onward. Like, you know, corporations have always tried to influence government, but like this just like opened the floodgates. And then it's and then, you know, you see these little cases like we were just talking about the FEC versus Ted Cruz case, the Americans for Prosperity Foundation versus Bonta, where

they're continuing to whittle away at the very few remaining campaign finance protections that that would you know keep corporations from just completely owning the government outright um yeah so yeah yeah yeah so corporations are people with full bodily autonomy and women. That's right. And people who give birth are not. That's right. That's right. In fact, yes, corporations now officially have more rights than people with uteruses. Right.

Cool. And, you know, we know they're not stopping here. Honestly, my biggest fear is they're going to come for the three-fifths compromise. And that might sound hysterical now, but. I wouldn't put anything past this group. I mean, they have said, and, like, you know, we'll get into this as we talk more about Raga, too, because the folks who are behind this and the folks who are, like, behind the Federalist Society, which is this very like shadowy group of lawyers and judges who have all like, these are all pieces, right, of this like, massive right wing takeover of the court system. And they are not shy about wanting to go back in time 100 years or more. And, you know,

if you look at who has rights and who doesn't, a hundred years or more, it's not that many people having rights. Sincerely, it's not. And, you know, nobody, Clarence Thomas would not have had rights. That's right. That's right. Yeah. Yeah. So Citizens United happens, Raga's budget grows by tens of millions of dollars, and they didn't have to report where any of this money was coming from. So, you know, you see this explosion in cases that are challenging a lot of these big laws that industries don't like. So this is where, like Leah mentioned, the attack on the administrative state. This is like what she's talking about. These folks really want to see, you know, quote unquote, small government.

But really, like the way I don't know, the way I've been thinking about it is like basically more rights for corporations and less rights for actual people. Yeah, right. Especially the ones with uteruses. Sorry. Yeah, but like, but really, like all people like they're, they're, it's really like, freedom for corporations, and fewer and fewer freedoms and rights for the public. Yeah, I feel like to like, I don't know, to me, I'm like, I've been this is like a tiny detour, but I've been reading a lot of like, early 20th century philosophers and stuff. And there was like a definite panic at that time amongst the sort of like elite white intelligentsia that like basically the public was too dumb to make

decisions that that that like the idea of of everybody having an equal vote was a terrible one and that um like things needed to be done to ensure that kind of the unwashed masses could be shaped and molded to vote in the way that, you know, the people who were in power wanted them to vote. And like, you just see that same kind of thinking in this stuff. This was Hamilton's thought, right? Yes. Yes. Yeah. Yeah. So basically, all these Republican attorneys generals are now working kind of hand in glove with these right wing think tanks and with the GOP in general. And they're coming up with cases that will allow them to challenge certain constitutional precedents or rights. Right. So I talked to this woman, Lisa Graves, last year, who like, like every once in a while, you'll talk to someone that really blows your mind about, you know, what's what's going on in

this country. And she was, she was one of those people. She was a Senate investigator for a really long time. And then she ran the Center for Media and Democracy for a long time. Now she runs her own research firm called True North, that kind of looks at what all these different groups are getting up to. What are they talking about in their meetings? Like, you know, what kinds of speeches are they giving at Federalist Society events, things like that. She's, I think, like, probably the most knowledgeable person that I've talked to on this stuff. So I just I just want to play you a little bit from her that kind of puts the Republican Attorneys General Association in in the context of like the broader right wing mission right now. The Republican Attorneys General Association, where we know

that it's a pay to play operation, we know that it's it's it has had enormously distorting effect on U.S. law. It provides a mechanism for corporations to pass money through to help attorneys general in ways that they would not be able to individually solicit for their own campaigns, given their role, their regulatory role over those very industries. And that's been going on since Raga was created back more than 20 years ago now. And it has accelerated under some of the attorneys general who have led it, like Scott Pruitt, who was, in my view, another corrupt individual, someone who was lax on ethical rules, to say the least, and who was willing to do the bidding of the oil industry in attacking climate legislation and climate rules, even the very modest CPP, the Clean Power Plan rules, to advance the interests of the funders of Raga. This conversation I had with her really like um made me have to like take a minute

yeah I was just I was like wow these fuckers like because they're so they've been they've been working on it for so long and it's like working um you know it's really yeah yeah again and again and again what you're seeing is like okay these are and these are the same fuckers that are doing the indian child welfare act case too by the way and all of the tribal stuff i mean it's like and the fucking um freedom of prayer and school stuff it's all the same groups of people um so yeah, this is back when Scott Pruitt was the Attorney General of Oklahoma. He was also the head of RAGA. And in that role, he put this case together. Was he the Attorney General of West Virginia? No, he was not. But he was the head of

RAGA. So he was like, okay, we're going to put this case together. Who's going to be the lead plaintiff? West Virginia, let's say you. That was actually the story where the New York Times mentioned Raga was talking about the origins of the West Virginia versus EPA case. So kudos to them for connecting all of the dots on that. Because I think that like, it's important for people to understand that this was not like, this was not like some coal plant operator in West Virginia was like, it's going to cost me too much to comply with the Clean Power Plan. Like, no, this was orchestrated by industry funded Republican officials. Right.

It's all part of the same sort of agenda and strategy. That's right. Like, all of these things are, like, the worst people are the same people, and they all want the worst shit. That's right. That's right. So, you know, I think it's easy to kind of think, like, oh, this is some scrappy coal miner who brought a case against the big bad EPA.

And that is absolutely not what happened here. Yeah. This is the fossil fuel industry fighting for itself under the guise of Raga. That's right. Yeah. That's right. That's exactly right. That's right.

And it's not just this case. They are now showing up in every climate liability case that gets filed. So there's about two dozen of these cases, and they basically say that states and counties and cities are starting to incur these massive bills to deal with climate change, either in terms of disaster preparedness or disaster response or climate adaptation. So whether you're talking about like a seawall, or moving people from an area that's just burning down every year, or, you know, rebuilding homes after hurricanes, all of that stuff is expensive, and it's only getting more expensive. And so these cities and counties and states have been saying, look, if you guys had not been blocking climate policy all along, this problem wouldn't be as bad as it is. And therefore, like you should cough up some of the money here. So Raga shows up in all those cases now to say that this is – and, I mean, you see actually that strategy showing up here too.

So they show up in the climate liability cases to say that these cases should be argued in federal court because they have to do with the Clean Air Act. And then what are they arguing in West Virginia versus EPA? That the Clean Air Act does not authorize the EPA to regulate greenhouse gas emissions. To clean up the air. To clean up the air. To clean up the air. They're like, bring me more of that dirty shit, please. Thank you. Yeah.

Yeah, exactly. So it's like, again, it's like there's coordination amongst the attorneys general. There's coordination across cases. So they're looking at the legal landscape and saying like, okay, we need to fight in this way over here. But then we also need to like, start whittling away at, you know, the authorities of the EPA, because we don't want them to be able to work on this. The Raga folks also showed up in the Juliana case, which is the big youth climate case um they tried to intervene there to stop the u.s government from making any kind of a settlement with the plaintiffs

um they also all joined on to ken paxton's attempt to challenge the results of the 2020 election um so so like voting rights gun rights abortion um prayer in schools uh climate they're they're there on all of these things tribal sovereignty yeah it's again and again and again the same people getting up to all of the same nefarious shit um here's here's lisa graves again on what they've been getting up to lately and kind of like what their plan seems to be for now and kind of the next few years. We know that it now is receiving a substantial amount of money from one of the emerging big dark money operations, which is Leonard Leo's operation. So Leonard Leo is the guy who ran the Federalist Society for decades. This is an organization of conservative attorneys who kind of set themselves

the task of picking judges. They're the ones that like, have been, if like the Republican plan has been to take over the judiciary, the Federalist Society is like, kind of the execution mechanism there. It's like they have, they're the ones that are saying, okay, put this judge on this bench and let's appoint this person. Leonard Leo himself is credited with basically telling Trump to appoint Gorsuch, Kavanaugh and Barrett. So we have him in particular to thank for the current makeup of the Supreme Court. So Raga now is not just a recipient of donations from big oil and big huge corporations, but it's also a major, and they've particularly targeted states and state AGs offices to advance Leonard's longer term agenda, which he described to the Council on National

Policy. And this was documented in that Washington Post story, but he described in that, in a speech to CNP last year, that his, that America stands at the precipice of what he called the revival of what he described as the quote structural constitution uh and he told uh the cnp audience um that no one alive in that room had seen the type of legal revolution that america was about to see based on the appointments to the supreme court and other courts to revive this so-called structural constitution to the law as it existed pre-New Deal. And, you know, that affects a whole host of laws. It affects civil rights laws, it will affect labor laws and labor rights, environmental regulation, and more. And it's an attempt, in my view, to really limit the ability

of Congress to pass laws, to limit the ability of agencies to regulate corporations, and to, you know, sort of change the whole modern structure of government, basically, in terms of the administrative agencies agencies but also the rights of citizens and the relationships between the United States as a as a government and other governments which obviously would include tribal governments that's really interesting tribes in that speech but it is a it's a it's a it's an attempt by Leo and an assortment of lawyers who are elite lawyers like Paul Clement and others who have been advancing some of these ideas.

And now they have a Supreme Court that's increasingly receptive to what I consider to be an extreme radical reactionary agenda to change our rights and limit our powers and our democracy through our representatives in ways that serve a very elite agenda, the agenda of the people who fund Leonard Leo and Leo's operations and fund the RAGA, the Republican Attorney General's Association, and have been really attempting to work a legal revolution through offices that we would otherwise consider to be independent. Yeah, yeah. I've read about this guy. He's been, otherwise consider to be independent. Yeah, yeah, I've read about

this guy. He's been, you got to give him, he is persistent. Yeah, I mean, this is like a 20-year project that he's been working on. And as soon as people started to figure out what was up with the Federalist Society, he left the Federalist Society and is now working with another organization called CRC Advisors, doing basically the same thing, but like with even less scrutiny because of all of these dark money things. Yeah, that's the thing about dark money. It'll get the eyes off you. Yeah. Yeah.

Yeah, we gotta, we gotta, we gotta find a more long-term strategy because when i say these people play the long game they play the fucking long game yeah no they really do and like the idea that they would like to and when i say they i mean not just uh the republican party but also these kind of big funders that are pulling the strings behind them and the folks like Leonard Leo and like the Koch brothers and whatnot, like they really, really genuinely would like to go back to like 1910-ish. You know, they want no regulations on business and no rights for people other than land-owning white men. Right.

While the planet turns into a hellscape, right? So like you're going back to 1910, but on a planet that's been altered beyond recognition. Or as they say in the military, foobar. That's right. That's right. Exactly. exactly exactly yikes um so that brings me to my next question why do pancakes always win at baseball something about batter uh because they've got the best batter first of all fuck you Uh, because they've got the best batter? First of all, fuck you.

Yes! Win. Second of all, what was the Supreme Court ruling on constipation? It was a poop point i don't know that's more like it that it was unconstitutional so good so good i love a good constipation joke yeah oh man i figured you would enjoy that okay so lately there's been this wave of the left is eating itself pieces and it kind of started with this pretty controversial piece um that was published in the intercept about two weeks ago do you remember hearing about this i do yeah yeah I do remember this. achieving their mission, which be it reproductive rights or environmental regulations or whatever. And it's just like they're so caught up in all this wokeness and like inclusion and their younger, more idealistic staff is just like never, ever, ever, ever, ever, ever satisfied.

One of the things in there that like I really hope these folks don't do, there's a bunch of executive directors who are wanting to do, like, a Harper-style letter that's fighting back against the wokeness. And it's like, whoa, that's not going to work out super well for you. So I want to focus on Politico. Okay. Politico came out with its own version of this type of journalism for his magazine this weekend. But that was preceded by two pieces about the inner turmoil of big green groups in particular, basically asserting that the groups were missing out on key opportunities because of these overly idealistic

young staffers who pushed the org to take on too much DEI that they forgot about GHG. Right. Okay. Political is also the same group that published these exposés on 350 back in February and about the Environmental Justice

Office of the EPA or about Gina McCarthy's office. So it's yeah. There's a theme. Can I read you just a couple of my favorite quotes from this article? Okay, here's one. We're losing a longtime environmental group official said granted anonymity to protect relationship with client. Democrats will continue to take the environmental movement and environmental justice movement for granted because they've got no place else to go.

Here's another quote. The more familiar path for many donors involves reaching for political center and hoping to win over some moderate Republicans. For decades, big green organizations were proudly nonpartisan and openly cultivated centrist Republicans. It was Republican President Richard Nixon who signed the bill creating the Environmental Protection Agency. Now I'm going to stop there and let you react. OK, I feel like these are both blaming environmental groups and quote unquote woke ism for something that is actually the fault of the fossil fuel industry. Like it's not it's not the environmental movement's fault that republicans stopped giving a shit about the environment it's not because of quote-unquote identity politics

that that happened uh it's because like the fossil fuel industry was like the fuck you will to all of the republican politicians that they were funding. Like, come on. This is like basic. And I will say that Bill McKibben in one of these pieces was like, the Republican Party left the environmental movement, not the other way around. Exactly. Yes. Right.

OK, so full disclosure, I work at an environmental nonprofit. I'm just going to go ahead and say it. If y'all thought I was paying my bills with podcasting money, sweet. Good one. That's a good one. Just got to tell you. I keep my day job and my public image separate because they're separate things. I'm not a spokesperson for my employer.

And I keep those things separate so that it allows me to say what I want when I want to. Like, so, I got a lot of fucking problems with this coverage. First of all, it takes for granted that these groups were successful before they got involved with all of this wokeness.

And if that were true, how the fuck on earth did climate change get this bad? Exactly! That's not me shit-talk talking any person or any organization. I think most of them would agree with you that climate change is a big fucking problem right now and that they didn't solve it. Right. Right. So like clearly something was not working.

And so these articles kind of assume it just kind of takes for granted that like 350 was so successful. Sierra Club was so successful. What happened? What happened was climate change. Like, did you read the IPCC report? Like, nobody's winning here. Yeah. Well, also what happened is that, again, I mean, I know I'm I'm like beating a dead horse here.

I wish the fossil fuel industry was a dead horse. But if you look at the actual data on this, the fossil fuel industry historically stopped spending money on trying to influence the public one way or the other whenever they feel like there's no threat of policy being passed. So like when there was a threat of policy being passed. So like when there was a threat of policy being passed, they ramped up in the late 90s. That's why you see this huge uptick in climate denial over the first decade of the 2000s. Then they kind of go away when Bush is president, right? Like they don't need they don't need to be spending money campaigning when they've got George W. Bush and fucking Dick Cheney in the White House. Right. Then you have Obama, you have Clinton, you have, you know, you have like these, these little spikes where they're like, oh shit, oh shit, there might be a chance of, of something

passing. And like they spent as much, um, to fuck with the, theenhagen summit when obama was president as they did to make sure that al gore did not become president um that was a huge threat for them and that is where you see like you know that's where you see uh waxman markey going to shit that's where you see the whole international climate policy sphere falling apart it was in in the lead up to Copenhagen that 350 actually was seeing quite a bit of success and that there was really like at that time, quite a bit of momentum behind the youth climate movement that existed then. And the industry spent, I mean, like a factor of 10 more than they had spent in any previous year up to that on lobbying and advertising

and everything else. So I just like it irritates me when these stories like don't take that shit into account or act like, you know, oh, well, of course, the oil industry was going to be doing that. But that shouldn't have had an impact. Well, it does. We know that it does. It's documented. Exactly. My other problem with these articles is that they only talk to people in power and granted that might be because the people who don't have power in these organizations aren't trying to talk to reporters because they don't really have job security like that but that also might be a good fucking reason to stop and think about whether you can do this story justice and whether you have any business doing it at all. That's right. So also it assumes that the environmental movement

lives in these organizations, but it's actually much bigger than that and not a moment too soon, right? Like it isn't like whatever Sierra Club does, that means that's what the whole environmental movement is doing. Just like it doesn't, whatever Planned Parenthood is doing, that's what the entire reproductive justice movement is doing just like it doesn't whatever Planned Parenthood is doing that's what the entire reproductive justice movement is about like that's just that's absurd and it's an outdated assumption and then this type of journalism scapegoats not just non-profit groups but younger staffers of

color at those non-profit groups for the failure of the Biden administration to keep its own campaign promises. That is exactly right. Exactly. Like, oh, we would have done climate action if it weren't for you pesky kids who really wanted it. What? What? What the fuck sis does that make? They're your campaign promises, homie.

They came out of your face. We saw you. That's right. So we wanted it too bad, so you didn't do it? Like, what are you, the fucked up Tinkerbell? What is this? Mm-hmm, mm-hmm, mm-hmm, mm-hmm. And that brings me to my biggest problem with this coverage, which is, where is this energy for Exxon?

That's right. Politico. Because I looked at the rest of their coverage on their site. And so they don't have a climate section. They have an energy and environment section, which is littered with this sort of palace intrigue type of shit. Like somebody died and make them the National Enquirer for the environmental movement or some shit.

Like basically, are you a gossip rag? Are you a journalism outlet? What the fuck are you? But I, so they have energy and environment and then they have sustainability, which like on the sustainability page on page one, you can get back to April today, right? Like there's not a lot of coverage over there. So is this your idea of a climate coverage strategy and meanwhile how are you not aiming any of this fire at exxon oh right they're your funder well as chevron in particular chevron right chevron like chevron funds politico's energy newsletter politico does a shitload of events with chevron all throughout the year so like and you know of

course i'm sure that they would be like oh that's just like terrible to insinuate that we would not be doing a good job of like advertising is totally separate from editorial but like okay then do a fucking better job yeah prove it yeah yep it's just so i i went on their site and I clicked on their one of their articles about the West Virginia case. And this is the opening line. The Supreme Court is expected to issue a ruling this month hobbling the Biden administration's efforts to rein in greenhouse gases. But its impact could weaken Washington's power to oversee wide swaths of American life well beyond climate change. This is sentence one. Wow. I'm sorry. So we are already skipping past climate change in sentence number one. Climate change is actually a pretty fucking big deal.

So like, can we stick with this for a second? And then like it really quickly falls into this both sides type of pit. Like it gets into like scientists say climate change is going to make floods and fires worse. Like, science shows that climate change is making floods and fires worse. You don't need all of this equivocating. Right? That's right. And, like, yeah. That's right.

Yeah. Yeah, I've noticed that. um in fact it's like the only place where i see this kind of palace intrigue coverage like on the regular about environmental groups and it's like i'm not saying that um environmental groups are above scrutiny or that there shouldn't be accountability um amongst the ngos as well like in fact to your earlier point you know, if they were doing that great of a job, then wouldn't we have made more progress on climate change? I think there's a lot of criticism to be made of, of actual strategies and things that they've tried that have failed. But like, I don't, I don't actually think that like, what they're focusing on is the reason that these organizations and their strategies have failed.

And like, honestly, I would love to see Politico dig into the personal agendas of the major funders of these organizations. How about that? Instead of the like desires of, of low level staffers to be treated like humans, you know,

because apparently that's a problem. Like, let's talk about, you know. I mean, I would like to see Chevron dig into its own funders. That's right. That's right. It's like, I don't, I just, I feel like, yeah, I mean, in general, I feel like, look, when we're actually at a point where oil companies are not dictating absolutely everything in the world, then we should absolutely turn our attention to the bullshit that environmental NGOs get up to. But like, until then, who cares?

I just, I don't know. How does your energy and environment section have more smoke for low-level staffers at the Sierra Club than it does for Chevron? Yes. Yes. How is that possible? Yes. Yeah, that is wild. It's really, really – it's just not helpful.

It's like not a – no one was sitting around going like, you know, we need more of on the climate beat, gossip. Right. You know what the title of the article was? Justice or Overreach. How the, what? Oh my God. The environmental movement embraces a broad array of progressive causes while its own agenda hangs in the balance. Sir, there is so much out there, so much out there about how all of these causes are connected to one another. And coalition building is never a distraction. Honestly, I'm concerned by how much this talking point is coming up and how much it is being glommed onto by the right and then sort of repeated by the left. So is it being glommed onto by them or are they planting it?

I don't know. I don't know because you definitely see – I mean you saw you know, to the Green New Deal when it first came out from, you know, supposed leftists and climate people that, you know, oh, you're trying to combine too many things, blah, blah, blah. But and it does make me think that like the right saw that and went, ooh, perfect target. They don't miss opportunities. I mean, let's leverage the grievances of white people who feel a little bit miffed by, you know, identity politics or whatever. Because, yeah, the reality is, and I talked about this last week with Yesenia, you and I have talked about this a bunch of times from the very beginning, all of the groups that have pushed climate denial were working on all of these other things before, during, and after. They have always worked on all of this shit together. You don't see, there is no right-wing organization that only works on climate denial. Like, there's not, there's just not. So the idea that this is that, you know, oh, you know, progressives have painted climate with the wokeism brush, and that's causing a problem. It's just not true. So I wish that people would stop

repeating it and maybe look into it a little bit more than just like a few, you know, Google searches. All right. Or only talking to people in very high leadership. Who already agree with your thesis like right it's like if the problem is like if you're if the thrust of the article is that these low-level staffers are just like up to no good maybe talk to some instead of just assuming you understand what their motives are or assuming that you know and also and also like, I don't know, maybe don't like maybe this isn't. I don't know. This just seems like a stupid way to fill a climate coverage, you know, strategy. Yeah. Yeah.

You know, and it's also like it lets the Biden administration off the hook for its own promises. It lets the fossil fuel industry off the hook for its own crimes. Right. Like so. So if the assistance at the environmental NGOs hadn't unionized, we would have had greenhouse gas limits. What? and this idea that like the environmental movement gets taken for granted because it doesn't have anywhere else to go because it's alienated the republican party sweetie where does the reproductive rights movement have to go where where can trans rights go where do other

human rights causes go they can't go to the republican party either but that doesn't mean that they don't get to push the democratic party. That's absurd. Right, exactly. I also think that like, I mean, I think I've already seen this in the wake just in the few days since Roe was overturned. I have seen white progressive men basically make the argument that like, Roe's not that big of a deal compared to climate. And I'm like, I don't, I don't understand why we have to like always do this whole hierarchy thing. And I also feel like Rebecca Solnit made this really good point on our episode with her about how even just at a basic level, like if, if like half of your movements rights are being like basic rights are being threatened, that means that they're going to have less time and less money

and less energy to work on climate. You know, it's going to take like the, the road decision is going to take some people out of the climate movement, you know, so is the attack on trans rights and like just purely from a numbers basis you should want to stop that um i also i also think it kind of splinters it right because like i i think that's why you have the environmental justice movement as a separate movement from the environmental movement or even the climate movement like those people didn't stop caring about climate didn't stop caring about the environmental movement. They just didn't trust white people in the mainstream movement. So they had to create their own. I think marginalized people are very good at multitasking and understanding that there are multiple threats to their lives and that they have no choice but to

organize against them. But it becomes a problem when it's like you see the assault on trans rights and you go, well, sucks to be y'all, but I'm going to work on this climate thing. I'm going to go work on this climate thing. And I'll get to y'all later because now you've alienated those people and they don't trust you. They don't trust this new world that you're trying to build. Right? Like, that's how I often felt about the mainstream environmental movement and their silence when it came to Black Lives Matter and police violence. It was like, okay, so that's cool, but I'm supposed to work with y'all on climate. Like, I don't trust you. Right. Yep.

That's exactly right. Anyway, bottom line, shit talk is not a climate coverage strategy there's better ways to tell this story and there are better there are bigger levers of power at play here if you can't tell the whole story maybe don't tell it yeah exactly exactly keep fucking that chicken i think i like it even better when you say it so. Resigned. Resigned. I guess the chicken must continue to be fucked.

Hot Take is a Cricut Media production. It's produced by Ray Pang and mixed and edited by Jules Bradley. Our music is by Vasilis Fotopoulos. Thamali Kodakara is our consulting producer. And our executive producers are Mary Anais Hegler, Michael Martinez, and me, Amy Westervelt. Special thanks to Sandy Gerard, Ari Schwartz, Kyle Seglin, and Charlotte Landis for production support and to Amelia Montooth for digital support. You can follow the show on Twitter at Real Hot Take, sign up for our newsletter at hottakepod.com and subscribe to Crooked Media's video channel at youtube.com slash crooked media.