washington — supreme court justices stumbled this week when hearing arguments about the most impactful environmental case in a generation. 

the problem, in part, is that the case concerns nothing.

“there isn’t really anything for the supreme court to consider,” said joe minott, executive director and chief counsel of the clean air council. “what’s interesting to me is why the court should have agreed to this case at all.”

west virginia v. environmental protection agency concerns an obama-era environmental regulation — the clean power plan (cpp) — that the court suspended in 2016 before it could ever take effect. then, the trump administration further squashed it, replacing it with the weaker affordable clean energy (ace) rule. 

but coal industry representatives and a bloc of red states are now calling on the court to say congress, under obama’s plan, didn’t authorize the epa to exercise “unbridled” power to regulate power plants’ greenhouse gas emissions. 

if the justices agree –– and at least five on the 6-3 conservative majority did voice some alignment — the agency’s ability to control power plant emissions overall could be ravaged. this would be bad news for president biden, who aims to cut the nation’s emissions in half by 2030. 

“electricity generation is a pervasive and essential aspect of modern life and squarely within the states’ traditional zone,” solicitor general lindsay see told the justices, speaking on behalf of state petitioners. “congress did not green light this transformative power.”

red states pulled evidence from the clean air act, particularly section 111(d), which instructs the epa to set emission standards, taking into account factors like cost, that consider the application of the “best system of emission reduction.”

“it takes an existing pollution source as a given and asks what emissions rate is achievable for that source,” said jacob roth, who represented private companies in the case. 

roth and fellow cpp opponents argued obama’s plan would impose such strict emission standards that the energy sector’s only option would be “generation shifting,” or transitioning away from dirtier options like coal to production technologies that use relatively clean natural gas and renewable energy to emit less. 

to some justices on monday, this argument walks an “inside the fence” line. 

“inside the fence” regulation would determine how a specific plant operates, which is how cpp opponents interpret the clean air act. “outside the fence” measures would regulate the nation’s electricity grid as a whole — stretching epa authority.

“traditionally, epa regulations under section 111(d) have concerned only what goes on within the fenceline of the sources,” said craig oren, professor emeritus of rutgers law school and clean air act expert. “epa’s clean power plan is a very extensive program that goes beyond what happens inside the fence line.”

to justice elena kagan, this argument has contradictions and bears no necessary relationship.

“inside-the-fence reform can be very small or it can be catastrophic,” she said. “there are inside-the-fence technological fixes that could drive the entire coal industry out of business tomorrow.” 

per justice clarence thomas’ example, this could look like the epa requiring a power plant to install such a costly technology that it would be unable to compete in the electricity market. 

applying the major questions doctrine

justices struggled on monday with whether this case applied to what’s called the “major questions doctrine,” which limits federal agencies’ power to affect consequential regulations. 

according to utility air regulatory group v. epa’s ruling, the court should block these regulations with “vast economic and political significance” unless congress’ statute very clearly gives the agency authority. 

“this is a major question because it allows epa to determine what the power sector as a whole should look like and who can be in it,” see argued.

many justices appeared to be fumbling through how to apply this vague doctrine to a defunct rule. 

“i think the potential surprise here…doesn’t go to regulating co2….but is using a cap-and-trade regime,” justice brett kavanaugh said. 

he suggested that the epa threatened to install such a “regime” for any state non-compliant with the cpp. while the epa issued a model cap-and-trade plan, it never formally imposed it on any states. 

justice sotomayor grappled with how the court could apply this doctrine given kagan’s explanation of the “fence” contradiction. 

“how do we define this major question?” she asked see. “it can’t be that what congress has chosen might lead in or outside the fence because there’s some out-of-fence activities that don’t necessarily lead to generation system-changing.” 

what happens next

at least five right-leaning justices appeared to voice some agreement with cpp’s opponents, increasing the likelihood the court may strike down the obama-era plan. 

only justice amy coney barrett expressed a mixed opinion.

“if we’re thinking about epa regulating greenhouse gases, well there’s a match between the regulation and the agency’s wheelhouse, right?” she said. 

the court is expected to rule on the case by the end of its term in late june or early july. until then, environmental advocacy groups will continue to rally in support of the clean air act. 

“if they do sort of move on this, then it’s to me truly a very political thing to do,” said minott of the clean air council. “that’s a really dangerous precedent.” 

according to the oklahoma office of the attorney general, pruitt “​was a leading advocate against the epa’s activist agenda​” and filed multiple lawsuits against the agency. once at the helm of the epa, pruitt’s reign was overshadowed by questionable spending practices, and accusations of federal ethics violations as well as inappropriate professional behavior, as reported by numerous media outlets. oh, and he rolled back several energy and environmental regulations, too.

pruitt’s actions culminated in a whopping ​13 federal investigations​ after only 17 months as administrator. he resigned in july 2018, citing the “​sizable toll​” of the “​unrelenting attacks​” on him and his family from the media and environmental advocates as reason for his departure, according to pbs news hour’s joey mendolia and daniel bush.

in pruitt’s absence, former epa deputy administrator andrew wheeler, has stepped in as acting administrator. while pruitt made headlines nearly every week, wheeler’s tenure has been noticeably quiet. however, wheeler is continuing to deregulate the epa and rolling back once strong environmental policies more quietly — and effectively — than his predecessor. his role as acting administrator begs a few questions:

1. who is andrew wheeler?

according to his epa biography, andrew wheeler was born in hamilton, ohio, in 1964. he became an eagle scout in high school, and ​received his undergraduate degree​ in english and biology from case western reserve university. wheeler continued his education at george mason university where he ​received his mba​, and then ​earned his law degree​ from washington university in st. louis.

2. how did wheeler end up in the epa?

this is actually ​not the first time​ wheeler has worked for the epa. wheeler worked as a special assistant in the epa’s pollution prevention and toxics office during the george w. bush administration. he joined pruitt’s team as deputy director in 2017 when pruitt was appointed administrator.

after pruitt’s resignation, however, wheeler expressed ​disinterest in the administrator position. in an interview with the washington examiner, wheeler indicated “he had no interest in taking over his boss’s job. ‘i could have put my hat in the ring for administrator. i was not interested in that. i am still not interested in that,’ he said.”

3. what was he up to before working for the epa?

wheeler has been working in washington for more than 20 years​, primarily advocating for the interests of the fossil fuel industry. wheeler was the former chief of staff to oklahoma sen. james inhofe. inhofe is considered washington’s ​most prominent climate change denier​ (remember the guy who threw the snowball on the senate floor? ​yeah, that’s inhofe), with wheeler’s opinions of the environment and climate change closely mirroring that of his former boss’.

wheeler has ​worked as a lobbyist​ for multiple natural resource corporations including some of the united states’ largest chemical, coal, and uranium companies. he lobbied for energy fuels inc., the primary uranium company that ​supported the shrinking of bears ears national monument in utah.​ according to the center for responsive politics, the coal-mining company, murray energy, ​paid wheeler’s consulting firm, faegre baker daniels consulting, ​over $300,000 per year from 2009 through 2017.

in 2010, wheeler denounced the science presented by the scientists of the united nations’ international panel on climate change, claiming the ipcc “has functioned more as a political body than a scientific body.”

4. why haven’t i heard too much about wheeler?

wheeler purposely avoids the spotlight, and prefers to do his work legally, yet behind closed doors. ​according to a report from the new york times​, “mr. wheeler … avoids the limelight and has spent years effectively navigating the rules … ​his career was built around quietly and incrementally advancing the interests of the fossil-fuel industry, chiefly by weakening or delaying federal regulations.”

5. what is he going to do to the epa, and to the environment?

“(wheeler) knows much more about managing the agency and the technical side of the environmental statutes that epa is charged with enforcing than pruitt,” said myron ebell, head of the epa transition team, in an interview with the guardian. “undoing (barack) obama’s regulatory onslaught at epa is a key part of the president’s economic revival agenda, and therefore wheeler will be a point man for trump just as pruitt was.”

wheeler is going to push president trump’s environmental agenda forward quickly and effectively. he will do so by staying within the boundaries of law and ethics, pursuing coal and chemical industry interests, and staying out of the limelight.​ ​wheeler knows washington, d.c., knows how environmental legislation and law work, and avoids the spotlight.

6. as a fan of a healthy environment, is there anything i can do?

wheeler is competent and efficient. from working for climate change deniers and lobbying for mining companies and fossil fuel industries, he is a quiet, experienced, and formidable foe of the environment’s wellbeing.

however, a keyword in wheeler’s job title is “​acting​.” president trump still needs to officially nominate a new agency chief — one who must then be approved and confirmed by a senate majority vote. this is a process that could take months, and well past november, after the midterm elections.

“wilderness, nope. wilderness society, nope,” she remembers thinking.

walker, who is black, grew up in the maryland suburbs outside of washington, d.c., and spent her childhood summers visiting family in detroit. though her grandmother always insisted she spend time outside each day, her childhood didn’t give her much experience with the wilderness.

“when you are in the lower socioeconomic bracket, you’re not thinking about going to a park. not one that isn’t close,” walker said. “it’s not even on your radar because you can’t get there.”

eventually, walker realized she wanted to pursue working for the wilderness society based on the merits of the position itself, not because she had a great passion for environmentalism. and the barriers that discouraged her from cultivating an interest in environmental issues are far from unique.

people of color are underrepresented in environmentalism and in the outdoor recreation industry. green 2.0, a research group that analyzes data on diversity in environmental organizations, found that as of april 2017, the full-time staffs of the top 40 environmental non-governmental organizations are on average 73% white.

only one in five visitors to national parks is nonwhite, and since the wilderness society focuses on public land conservation and access, this is something of a damning trend in the organization’s homogeneity, too. at the wilderness society, 86% of the staff is white. of the senior staff, 96% is white.

when walker first began working for the wilderness society as an operations specialist a year ago, there were only three other black women in the organization, which employs about 150 people total.

“it was that disconnect — the fact that all four of us looked different… and people still called us the other’s name, which was a little rough,” she said. “i was the newbie, how could you possibly get me confused as heather?”

in environmentalism, and especially in land conservation, there’s an unspoken expectation that the people who do this work care about the environment, and that they care because they’ve had direct experiences with the outdoors. many people who work at the wilderness society spend their free time kayaking, camping, and hiking in the backcountry. for people like walker who haven’t had those experiences, the motivation to work in environmentalism may not be there because of a lack of exposure.

though anastasia greene, communications manager for the wilderness society for the northwest region, enjoys spending time outdoors, she believes it shouldn’t be a prerequisite for working in environmentalism. greene said anecdotally that she thinks it has been in the past.

“there’s all these little mentalities around what it means to be an advocate for the environment,” the seattle-based greene said in an interview at the wilderness society’s d.c. office. she is a woman of color leading regional communications strategies for the pacific northwest.

“it is an environmental organization, so there are people who are just gonna love like getting outside and extreme sports… but i think part of the culture that we really have to address is the expectation that if you don’t like these things or if you can’t do these things that you’re somehow less.”

opening mainstream environmentalism up to more diversity is encouraged by a blossoming of smaller organizations such as outdoor afro, latino outdoors, green for all, adventures for hopi, the greening youth foundation, big city mountaineers and the center for diversity and the environment. the wilderness society has joined with its urban to wild campaign, which helps connect urban and low-income communities to public lands that might otherwise be inaccessible.

urban to wild (u2w) is an effort to reduce the barriers to outdoor spaces faced by our country’s rapidly growing and diversifying urban populations. over the next year, u2w will be working in the los angeles, puget sound, and albuquerque metro areas to enact new policies and practices. according to the wilderness society, the u2w model focuses on “protecting local parks and open space, creating new transit to trail opportunities and working with public land managers to ensure they are inclusive of local community needs.” the organization also plans to develop a u2w coalition on the national level.

community-building for people of color in environmentalism, with specialized conferences and social and professional networking opportunities, helps people feel more comfortable and supported in their work. the people of the global majority in the outdoors, nature, and environment (pgm one) summit brings together environmental and outdoor recreation industry professionals who identify as nonwhite to share their experiences. outside of the professional environmentalism world, instagram accounts like brown people camping and women of color in nature highlight the recreational experiences of people of color and inspire others.

walker is hopeful about the the wilderness society’s capacity for change. she says that the organization, spurred by changing views on the importance of diversity in environmentalism, is enacting policies designed to recruit people of color. for example, the policy sets a goal that a certain percentage of qualified applicants who are chosen to be interviewed should be people of color depending on the location of the position.

in d.c., where the population is majority non-white, that goal is 25%. the goal is less ambitious for the more rural offices out west, where the candidate pool includes fewer people of color. in wyoming, where the population is over 90% white, the target proportion is only 10%.

“they’ve acknowledged it, and i think that was the biggest step ever, because once you acknowledge it, you have to do something about it,” walker said.

“the wilderness society is truly committed to becoming a better organization every day by investing in a welcoming workplace culture, building a stronger recruitment network to diversify our staff, and challenging ourselves to make sure that public lands benefit us all,” said jamie williams, president of the wilderness society.  “the experiences of our staff should be a constant reminder of both what we have accomplished so far and how much we have yet to do—as an organization and within the conservation community as a whole.”

recruiting interns and employees from historically black colleges and universities (hbcus) is a new step the wilderness society is taking, due in part to the enthusiastic outreach of recruiters like shaw-walker.

“i did have a lot of people pass, just glancing like, ‘no, i don’t stand outside,’ and i had to say, ‘hey, we don’t just stand outside,’” walker said of recruiting at hbcus. “while they didn’t know they were looking for me, i knew i was looking for them.”

but recruiting employees of color is only the beginning of the battle toward equity. environmental professionals of color often face tokenization and microaggressions in the workplace, like being assigned to work on justice and diversity campaigns because of their identities.

heather davis served as the assistant director of the wilderness society’s urban to wild campaign until october 2017, when she took a management position at the national wildlife federation. in an october email to the wilderness society’s staff, davis wrote that she was tired of being pigeonholed into certain positions because she is a black woman.

“i am realizing that as young as i am, i am tired,” she wrote. “i am tired of the burden of feeling like i must and i need to work on justice issues in the conservation and environmental community simply because this is baggage that i carry and bring as a woman of color.”

“this is why our diversity, equity and inclusion work as an organization and as a community is so imperative and important because there are other heathers out there with the skills, desire, and passion to work on conservation and environmental issues, but we need the conservation community to see us as professional conservationists first and people of color second and not assume that because we are passionate about something that we necessarily want to make a career out of it,” she wrote.

walker admits she, too, fears being pigeonholed. but greene views it differently.

“to me, it doesn’t feel like being pigeonholed,” she said. “i feel like i need to be there.”

“i value speaking up and knowing that, ok, i don’t speak for all black women, i don’t speak for all people of color, but if i’m in the room, i’m gonna be heard,” greene said.

the hope is that environmental work will one day be an appealing and welcoming field of work for more diverse communities. although the organization is still in the middle of fully diversifying all of its offices, including those in the intermountain west, walker has a good feeling about where the wilderness society is headed.

“from what i gather… it was a lot of kumbaya stuff at first,” she said. “but i think since we’ve officially introduced policies that directly affect how we bring new people into the organization, it’s working.”

key words:  green house gas emissions (ghg),  environmental defense fund (edf), temperature set points, climate action plan (cap),  energy consumption,  sustainability, carbon neutrality, maricopa community colleges

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