The Scheme #37: The Scheme Meets Time to Wake Up

Mr. President, people following the Senate floor will know that hundreds of times I have come to the floor with my trusty, increasingly beat up “Time to Wake Up” poster to describe the various manners in which the fossil fuel industry has corruptly obstructed our ability to solve the problem of climate change that is caused by fossil fuel emissions. They might also remember that I have come to the floor dozens of times to give my “Scheme” series of speeches about the corrupt manner in which the Supreme Court has been captured and put into the service of a gang of rightwing billionaires who tend to be fossil fuel billionaires. In this speech, the “Time to Wake Up” series and the “Scheme” series converge. I don’t know quite how to describe it, but maybe it is “Time to Scheme Up” because, for sure, that is what has been done in this country by the fossil fuel industry to blockade our efforts to solve the pollution hazard that they have created for our people–a pollution hazard that is now real and immediate in our economy. Look no further than the State of Florida, where climate risk has thrashed the home insurance markets to the point where the home insurance market collapse has cascaded into mortgage markets, which has, in turn, cascaded into real estate values–property values. Last year, Florida led the country in lost property values. This year, there was an article in Newsweek just a few days ago about how 6 to 8 percent losses are predicted in Florida real estate values because of that cascade. Property is very hard to sell if you can’t get a mortgage on it, and it is impossible to get a mortgage on it if you can’t get insurance on it. And even if you can get insurance, if the insurance costs $14- or $15- or $20- or $30,000 a year, you add all that up, and it comes off the value of the home, which is why you are seeing people unsuccessfully trying to sell homes in Florida for hundreds of thousands of dollars or more less than they paid for it. So this is on its way. It is coming right now. I am just going to continue to dig into how it is that we got here because how we got here involves a lot of mischief, a lot of real problems. One of those problems came to light just recently in the form of a number of memos from within the Supreme Court from the Justices to each other that were released or leaked–somehow came to the New York Times–that describe how it was that the captured Court put an end to the Clean Power Plan of the Obama administration before it even came to life. Before even a court decision had been made about the merits of the rule, five Republican-appointed Supreme Court Justices stepped in and killed that rule in the crib before it could have any real effect. Charles Pierce has written a pretty good summary of that New York Times article. He said:        The New York Times published a trove of personal memos from the members of the Supreme Court outlining the court’s promiscuous use of the so-called shadow docket. It has become the carefully constructed conservative majority’s favorite work-around to kill policies it doesn’t like and support causes that it and its corporate patrons do.   What appears to have happened here is that the shadow docket was born in the crib-killing of the Clean Power Plan. This is quoting the New York Times story:        By a 5 to 4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness.   Not a Court of final impression, a Court of first impression–the first one to look at it. That is not the way it ordinarily works.        The decision consisted of only legal boilerplate, without a word of reasoning.   That is similar to the way the shadow docket has been working–before briefing, before argument–a decision without legal reasoning provided. It continues about the Chief Justice:        Chief Justice John G. Roberts, Jr., has cultivated a reputation for care and caution. [These] papers reveal a different side of him. At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama’s plan to address the global climate crisis.   I will get into this a little bit further as I continue through my remarks, but the basic summary is that the Court concluded that without stopping the EPA’s rule before it went into effect, before any court had actually considered it, that would cause irreparable harm to the fossil fuel industry–specifically, mentioning that private industry will suffer irreparable harm–this, at a stage in the proceedings, where the question of whether that harm even existed had still not been properly litigated. So I go back a ways on this. In 2015, in one of my “Time to Wake Up” speeches, I said:        The Supreme Court has handed the polluters a heavy cudgel with its misguided Citizens United decision, allowing big corporations to spend–or more important, threaten to spend– unlimited amounts of undisclosed money in our elections. More than anyone, polluters use that leverage to demand obedience to their denial script.   Another one, 2017:        The Supreme Court’s Republican appointees got in the habit of doing what they were told by the forces that appointed them (which include the fossil fuel industry, which asked for the Citizens United decision), and in a fateful combination of obedience and political ignorance, they wrecked our politics.   A year later, I described how:        Republican strategists are expanding their grip to the Supreme Court, building there a reliable Republican majority.   I warned that we mustn’t try to replicate that apparatus. We must expose it. And when we expose one part of the apparatus, we expose all because it is the same crew behind packing the courts and denying climate change and running the dark money machine. In January of 2010, I said:        The five Republicans on the Supreme Court gave the fossil fuel industry the Citizens United decision. I said:        In January 2010, the five Republicans on the Supreme Court gave the fossil fuel industry the Citizens United decision; the industry instantly turned its new political weaponry on the Republican Party; and bipartisanship on climate change was stamped out by fossil-fuel threats.   This integration between the fossil fuel industry and the Supreme Court and the dark money power that the fossil fuel industry has used to crush climate action in Congress is something that has been apparent for some time. In 2020, I added:        Citizens United unleashed toxic doses of money, and unprecedented doses of virulent dark money, into our political atmosphere. [Once] democracy is poisoned, stunned by secret fossil fuel money and threats, [it fails] to listen to plain warnings.   In 2022, I called this “the Court that dark money built.” In 2022, I said:        [I]t is probably more accurate to say that we now have the Court that dark fossil fuel money built.   So it comes as little surprise that these memos from within the Court should reveal that linkage between the Republican-appointed Justices and the fossil fuel industry. And, of course, it should come as no surprise that the roots of this shadow docket that has been used so politically by the Republican majority on the Court–the roots are found in an act of service to the fossil fuel industry billionaires who captured the Court. If you look at the scheme to maintain the fossil fuel industry’s free-to-pollute business model where they get away with polluting as much as they like with no cost or consequence, you have to look at the Supreme Court facilitating this. Citizens United, of course, signaled the end of climate legislation because the unlimited dark money that the fossil fuel industry could use to shut down climate action in this body was successful. Unlimited fossil fuel dark money was brought to bear on Congress, and our ability to solve this problem collapsed. Look before the Citizens United decision. Look back to 2007, 2008, 2009. My first years here, there was robust negotiation on major climate legislation–four different strategies here in the Senate; three major bills, bipartisan bills; and a Presidential candidate in John McCain who ran on a perfectly legitimate climate platform. All of that dead–dead–the day the Citizens United decision came down and the fossil fuel industry pounced with its new dark money power. But it is not enough to stop legislation. If you want to protect your free-to-pollute business model, you also have to stop regulation, and that is where this Clean Power Plan decision came in. That is where the subsequent major questions doctrine came in. That work by the Supreme Court signaled the end of climate regulation as the Supreme Court intruded into a decades-long regulatory process and rebooted it to protect against regulation that would limit the free-to-pollute business model of the fossil fuel industry. As I have said in other speeches, that major questions doctrine did not pop from the heads of the Supreme Court Justices in that decision. It was cooked up in fossil fuel-funded doctrine factories, massaged, maneuvered into conferences, propagated by the Federalist Society, called up at conferences. It was groomed and grown so that the Supreme Court could pick it up in a decision, which, of course, they did. So if you shut down climate legislation and you shut down climate regulation, what is left is climate litigation–that people harmed by all this damage, by all this pollution, usually have a right to bring a lawsuit. And sure enough, lawsuits are emerging. So the next project of the Court is to attack climate litigation, and sure enough, the fossil fuel industry is all over that Court, asking for it to shut down the prospect of climate litigation. And guess what. That little rascal Leonard Leo, who was the fixer, the implementer of the Court capture scheme, who worked with Trump’s counsel, McGahn, to get the three Supreme Court Justices Trump supposedly appointed–separate argument: I think they were actually selected by the Koch brothers’ political operation, and Trump was the chump at the end of the deal who signed off on it. But Leonard Leo and his billionaires were the ones who put that whole [[Page S1894]] scheme together. They put the whole concept of a Federalist Society list together and the completely untrustworthy President Trump being obliged to say publicly that he would pick off that Koch brothers’ list. They called it the Federalist Society list because calling it a fossil fuel billionaires list wouldn’t sell so well. And then they ended up with these Justices. The guy in the middle of all of that was this little fixer, Leonard Leo. Guess what Leonard Leo is doing now. He has an array of maybe 25 front groups that he orchestrates. Some of them are actual corporate entities. Some of them are what are called fictitious names for his corporate entities. So you have a front group, which has a fictitious name, that you operate through. Why you need to do that is a little hard to say, but if you are up to no good, I suppose you want as much camouflage as possible. What Leonard Leo and his front groups are all over right now is trying to shut down climate litigation, to make it a clean trifecta so that one industry is free to pollute as much as it wants with no legislation, no regulation, and no litigation that can stop it. Again, it goes without saying that pollution is not something that should be allowed. It is certainly not something that should be allowed for free. But money will buy you a lot, and the fossil fuel-funded phony flotillas of front group amici who come into the Court to tell it what to do–and have, I would say, a 100-percent winning record before the Court–are starting to gather around shutting down climate litigation as well as regulation and legislation. In other words, a captured Court is delivering the goods for the billionaires who captured it. So let’s go through these different memoranda as they came out. The first is from Chief Justice John Roberts dated February 5, 2016. He is responding to emergency applications seeking to have the EPA’s Clean Power Plan stayed. On the very first page, he communicates to the other Justices:        Absent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector.   That is a factfinding. It is a factfinding made without any court having found that fact. It is a factfinding by a Court that is not supposed to engage in factfinding in the first place. It is a disputed fact in the case before the case is even litigated. Yet here is the Chief Justice of the United States going with the factual argument of one of the parties even before arguments related to an emergency stay. He has to admit to his colleagues that “the rule does not require emissions reductions until 2022.” It is dated 2016. Six years later, it might require emissions reductions. But then, February 5, 2016, he says that “its impact is being felt now.” He is taking the side of one party on a contested fact and saying that the impact of that contested fact, as he sees it, is actually being felt now, 6 years ahead of when anything has to happen. He says that “the applicants indicate”–again, an assertion by a party–the applicants untested, unchallenged–“applicants indicate that they are currently in the process of committing time and resources to compliance.” That is the reason to shut down the Clean Power Plan? He says that “the impact of the rule will reduce coal production for power sector use by 2.0 percent.” Over a 2-percent reduction, he jumps completely out of his lane, makes factfinding, and shuts down the regulation before it has even been considered by the lower courts. Then he says that the “harm . . . is irreversible.” Mr. President, I ask unanimous consent to have the Chief Justice memorandum printed in the Record at the end of my remarks. That memorandum was responded to rather quickly by Justice Breyer, who noted:        First, it is unusual for this Court to issue a stay of an agency’s order during the time that the Court of Appeals is considering its lawfulness.   It is a live legal dispute in the court of appeals, and the Supreme Court is jumping in to stay it? That was not just unusual; it was unprecedented. As Justice Breyer points out, “it is difficult at this point to say that the absence of a stay will cause irreparable harm.” Even among the Justices, that is a contested fact, and yet the Chief Justice is willing to rely on his view of that contested fact even though it is supposedly not a factfinding body in the first instance. As I mentioned a moment ago and as Justice Breyer points out, “the order does not require any company to take action for six years.” So it was hardly an emergency. Finally, he pointed out that “all of the applicants” were “free to renew their applications for a stay” once the DC court of appeals had done its work and come right back to the Court and get the stay then rather than to jump ahead of the circuit court of appeals. And it notes that the circuit court of appeals has agreed to proceed on an expedited basis. Well, it didn’t take long for the Chief to respond to that. He wrote right back saying that “private industry will suffer irreparable harm from a rule that is–in my view–highly unlikely to survive.” So now he is not only making factfindings that are contested even within his Court and that he shouldn’t be making in the first place, but he is also predicting the legal conclusion of how this is going to end up in his Court. He says that the “Court will not issue a decision until 2018 at the earliest”–still 4 years before that date–“long after the real-world impacts of the rule would have been felt in the absence of a stay.” Again, more and more factfinding. He says there will be “on-going, cumulative, and irreversible harms that private parties are incurring each day.” Again, that is a contested fact, but he is willing to say that as if it were an actuality and not a point in contention. Justice Kagan comes back to him to say:        As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.   She calls this a “drastic and unusual remedy” and points out that this fact that Chief Justice Roberts has so readily lurched to–the applicants’ assertion–“is both entirely speculative and highly doubtful.” So now you have another Justice challenging the fact that the Chief Justice offers as Gospel. She says:        It is implausible that such a minor emissions reduction–   Two-percent reduction in coal–        to be achieved six years hence will require substantial and irrevocable commitments of resources in the coming months.   Then in comes Justice Sotomayor.        I agree with Steve’s [Breyer] proposal and Elena’s [Kagan] supplement to that proposal. As Elena notes, it would be unprecedented for us to grant a stay before any court has reviewed this complicated and complex case.   She says:        [N]o applicant has identified a single real plant–   An actual, real facility–        as opposed to a hypothetical “model plant”–that is in immediate danger of closure absent a stay.   She challenges the costs that have been discussed by the Chief Justice, and she points out that “an emergency stay on limited briefing before the D.C. Circuit will hear argument on this regulation in just four months.” Just wait 4 months and get the proper order–circuit court of appeals, then Supreme Court. Faced with that, in chimes Justice Alito, brought onto the Court with Leonard Leo at the White House helping make the selections. He concludes saying:        A failure to stay this rule threatens to render our ability to provide meaningful judicial review–and by extension, our institutional legitimacy–a nullity. Instead of robust judicial review, our opinion will be a mere postscript.   Remember, this is a rule that won’t have effect for 6 years, where there will be a proper appellate court decision below in 4 months, and all of that is intolerable to Justice Alito, a product of the “billionaires/Leonard Leo” court-packing operation. And the closer is Justice Anthony Kennedy, who writes an unusually brief [[Page S1895]] decision, compared to all the others, or a memorandum, compared to the others, simply concluding: “[F]airness to the parties counsels that we should grant [the stay] now,” and “I agree with the recommendation of the Chief.” That gave the Chief the votes. They granted the stay, and the Clean Power Plan died. Mr. President, I ask unanimous consent that the remaining memoranda that I referred to be printed in the Record at the end of my remarks in the sequence in which I described them. Mr. President, what is the backdrop to all of this? The backdrop to all of this is the massive amount of harm that is caused by fossil fuel emissions. The pollution is really astounding. The International Monetary Fund most recently assessed the cost of fossil fuel pollution and of its free-to-pollute business model in the United States of America at $770 billion in 1 year–$770 billion in benefit to the fossil fuel industry, a form of subsidy, from being allowed to pollute for free and not being obliged to clean up its mess. They are allowed to cause $770 billion worth of harm to Americans for zero dollars. When you are allowed to cause $770 billion worth of harm to ordinary Americans for zero dollars, you have a massive motive to corrupt. You have a massive motive to apply political influence. You have a massive motive to take advantage of the dark money that you pressed the Supreme Court to allow and authorize, and bring that to bear on Congress to make sure that your $770 billion annual pollute-for-free subsidy is protected. What did you note about my discussion about the Court’s conversation on harm? What you should have noted is that 100 percent of the Court’s conversation on harm was on harm to the polluters. It was the only harm that the Chief Justice mentioned or considered. The entire argument about staying the Clean Power Plan hinged on analysis of harm that only looked at the harm to the polluter. There was no mention of climate change. There was no mention of the harm of emissions. There was no discussion of the health damage from climate change and what it is doing now and could be projected back then to do to insurance markets; what it was causing in sea level rise; what the ancillary pollution of fossil fuel that isn’t climate change pollution but is lead, mercury, SO<inf>X</inf>, NO<inf>X</inf>, particulate matters, is doing. They literally turned a blind eye to fossil fuel pollution measured at $770 billion worth of harm, most recently–total blind eye to it– and focused only on the harm that would be done to the fossil fuel industry from having to comply with clean power rules. Other studies have shown that the amount of money spent on the operation to capture the Court–a short word on Court capture, it goes back to the well-acknowledged notions of Agency capture or regulatory capture in the bad old days. Mining interests would make sure that all their friends were appointed to the mining safety commission so they could know the mining safety commission would always give them the answer that they wanted. That is Agency capture. In the bad old days, railroad barons would make sure that all their friends and lackeys were appointed to the railroad rates commission so they could be sure that all the railroad rates that were set were advantageous to them and that they could make sure that they got the rates that they wanted. That was called Agency capture. It is a renowned phenomenon. It is written about constantly in administrative law. There is a whole field of economics that studies it. What happened here is that Agency capture or regulatory capture was brought to bear on the Supreme Court, and it has now turned into, in essence, a captive body that does this bidding. The number that I am referring to is the amount that was spent on that Court-capture operation. People who do really good research have dug into this, and at this point–more research will make the number bigger certainly. But at this point, it looks like about $600 million– million with an “m”–was spent on the Court-capture operation. Now, that is a lot of money. But it is not a lot of money if you are defending a $770 billion annual subsidy that lets you pollute for free when you shouldn’t be allowed to do that and nobody else is allowed to do that. Protecting that $700 billion for $600 million is probably the most lucrative investment the fossil fuel industry has ever made. And if you pile up the years since the Clean Power Plan was stopped– that was in 2016. Now, it is 2026–so 10 years. That subsidy number has grown over the years as the International Monetary Fund has done a more and more detailed and better job of figuring out all the added harms, as harms are piling up. So if you look at 10 years, it is not $7.7 trillion. It is probably a number closer to $6 trillion. But think about that. What the Supreme Court did in this one decision, by breaking all of its own rules and looking only at the fossil fuel industry’s harm, is to set loose $6 trillion worth of harm over the next 10 years that all of us have had to pay for in health, in harm, in lost property values, in increased insurance, in a myriad of different ways–$6 trillion, call it, over those 10 years. That makes $600 million to capture the Court that made that decision an amazing payback, but a really, really dangerous payback for the American public. I will conclude by saying that whether you look at this as an aspect of the scheme to capture the Court or whether you look at it as an aspect of the endless fossil fuel pollution that is causing us to need to wake up before it is too late–either way you look at it–the rot runs deep around fossil fuel, and it seems to have infected the Court right over there. I yield the floor.