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, SOX, NOX, 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.