A True Progressive Top Court Takes On Climate Change: The Case Of Germany
November 14, 2022/ Francis Menton
Two of my recent posts have looked at critiques from the left of the Supreme Court’s decision in West Virginia v. EPA — the June 30 decision that held that the Clean Air Act did not clearly give EPA authority to order the phase-out of all fossil-fuel generated electricity in the U.S. My July 5 post, “How To Think Like A Liberal Supreme Court Justice,” summarized Justice Elena Kagan’s dissent in the West Virginia case. My September 12 post, “How The Left Views Administrative Law,” discussed the presentation at the Federalist Society convention by Professor Sally Katzen of NYU Law School, where she stated her belief that EPA did have the authority in question, and criticized the Court for having taken “an extreme action to shut down rule-making.”
But the Kagan dissent and Katzen presentation are just critiques of the approach to this matter taken by our constitutionalist-dominated Supreme Court. A separate question is, what would the liberals do if they suddenly found themselves in control of the top court — say, if a new Democrat-controlled Congress decides to create six new justices to be appointed by President Biden?
At the lunch following the panel where Professor Katzen spoke, I found myself sitting next to two lawyers who had come from Germany to attend the convention. One of them said to me, in essence, you have no idea what a country’s top court might do when it feels that its powers are unconstrained. He then referred me, on the subject of climate change, to a Decision from the German Federal Constitutional Court (Bundesverfassungsgericht) from March 2021; and he gave me sufficient pointers to find information about the Decision in English.
https://www.manhattancontrarian.com/blog/2022-11-14-how-a-true-progressive-top-court-handles-climate-change-the-case-of-germany
