[Congressional Record Volume 166, Number 178 (Monday, October 19, 2020)]
[Senate]
[Pages S6315-S6318]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Climate Change

  Mr. WHITEHOUSE. Madam President, I do want to say that we are here at 
a time when the Republican Party is jamming yet another nominee through 
bizarre procedural practices onto the Supreme Court.
  We have examined in the Judiciary Committee some of the ways in which 
the funding for that operation flows from big anonymous donors who use 
the Federalist Society as a conduit to buy a seat at the table where 
our Supreme Court Justices are selected, and then, with contributions 
as big as $17 million, pays for campaign ads for the nominee who has 
been selected and then sends an entire flotilla of front groups in an 
orchestrated chorus to go and argue together before the Supreme Court 
as if they were different.
  What I want to say today is that we have been looking at this 
captured court problem for a while, and we are releasing this ``What's 
at Stake'' report on what it means for climate and the environment 
because who is behind the scheme to capture the court are primarily the 
big polluters who want protection from courts that will be friendly to 
their interests.
  I will speak more about this and about why they are willing to spend

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what the Washington Post has calculated as $250 million in dark money 
to affect this court-capture operation. What is the payback for them?
  I am here for this episode of my ``Time to Wake Up'' series, which 
has an interesting overlay with what is happening in the Senate because 
we are considering the nomination of Judge Barrett to go on the Supreme 
Court. Her nomination completes a series of three nominations to the 
Supreme Court consecutively, each of which has been distinguished by 
extremely unusual procedural maneuvering and even rule-breaking within 
the Senate and the Judiciary Committee to get those nominations pushed 
through. So we have been looking for some time at what the motivation 
is behind all of that pressure and what the explanation is for all of 
those bizarre procedural anomalies that we see over and over and over 
again.
  As I described in the Judiciary hearing, what we see is an operation 
that has brought big, anonymous special interests to the table, where 
Justices are selected by virtue of their writing big checks. The 
vehicle for this has been the Federalist Society, which has a fine role 
on college campuses as a conservative discussion and student group and 
which has a relatively fine role in Washington as a think tank--as fine 
as think tanks are. Yet it also has this additional role of taking 
money from big special interests, not disclosing who they are, and 
giving them a seat at the table when the Federalist Society is 
selecting Justices, and that is wrong. There is just no doubt about 
that being wrong.
  Then, once the Justices are selected, guess what. Ad campaigns get 
launched in support of them, and checks get written as big as $17 
million to support the ad campaigns. Again, the donors are anonymous. 
It is very weird. Then, finally, they get on the Court, and these 
little flotillas of amici curiae--friends of the court, people who file 
briefs--come into the Court by the dozen. They don't disclose it in 
their briefs, but if you dig back a little bit, you will find that many 
of them have common funding and that the amicus curiae performance 
before the Court is an orchestrated performance--again, anonymously 
funded.
  So what brings that to today is that Senator Merkley has led our 
effort with this report: ``What's at Stake: Climate and the 
Environment. How Captured Courts Rig the System for Corporate 
Polluters.''
  I want to express my appreciation to Senator Merkley for his hard 
work on this report and to his staff for its report. He has been joined 
by me, Tom Udall, Debbie Stabenow, Ed Markey, Dick Blumenthal, Sherrod 
Brown, Brian Schatz, and Martin Heinrich. We are proud of this work. 
This is one of seven follow-on reports to our original Captured Courts 
report.
  One of the things that I pointed out when I was discussing this in 
the Judiciary Committee was that the Washington Post's investigation 
into this scheme, which was a fairly robust investigation; I have to 
give it good marks--tallied up the amount of anonymous money that it 
could connect to the network of groups that is performing this scheme 
at $250 million. This $250 million is a lot of money. A quarter of a 
billion dollars is a lot of money. I have people say: No. No. It 
couldn't possibly be true that they have spent $250 million on this 
effort to capture the Court. Who spends that kind of money?
  So I want to walk through an example of how this money gets paid back 
after it is spent, and I will use just one example, one case.
  Back in the Obama administration, in order to deal with climate 
change, the Environmental Protection Agency created a Clean Power Plan 
to allow different States to set targets for themselves and try to meet 
those emissions reductions targets. That was challenged in court.
  The case went to the Supreme Court, where 5 to 4, with what I call 
the Roberts Five--no Democrat but the Republican appointees who are 
actively engaged in this process--did something very unusual. They 
granted what is called an interlocutory stay. Interlocutory stays are 
virtually unheard of. In fact, I believe this was actually the first.
  So objecting States--primarily States with fossil fuel industries--
went to the DC Circuit Court of Appeals. They objected to this and 
asked for a stay, and the DC Circuit said: No. You can appeal the rule, 
but go through the ordinary process. We are not going to stay it.
  They then went running up to the Supreme Court, where the five 
Republican appointees granted the stay. Again, I don't think that had 
ever happened before, an interlocutory stay.
  So let's do a little bit of math about just that one decision. Let's 
start with the International Monetary Fund, which is not a green 
organization by anybody's likes, I don't think, but it is pretty good 
at financial analysis, and it has come up with a number. In the United 
States alone--just in the United States--the fossil fuel industry 
enjoys an annual subsidy of $600 billion with a ``b.'' That is the 
IMF's calculation. It is actually a little bit north of that, but I 
have rounded it to 600 for these purposes, primarily because the 
industry gets away with not paying for what economists call its 
negative externalities. They get to pollute for free, and, basically, 
that is a violation of every rule of market economics.
  I do not care how conservative the economist is that you go to. The 
conservative heroes of economics from the Chicago school have said: 
Yes, when it is pollution, it should be charged to the polluter and 
should be baked into the price of the product; otherwise, the market is 
failing, and you have a subsidy.
  So a $600 billion subsidy every year, and the Clean Power Plan case 
was in 2016. It was in February of 2016. It is now October of 2020, so 
more than 4 years have passed. But, again, let me just round it down, 
and let's say that it has been 4 years. Four years at $600 billion a 
year is $2.4 trillion--$2.4 trillion.
  Let's assume that the Clean Power Plan, had it been implemented, 
would have reduced the $600 billion annual subsidy. Let's be really, 
really, really, really conservative, and let's assume that the effect 
the Clean Power Plan would have had on the fossil fuel industry would 
have been to reduce that by 1 percent--just 1 percent. So over those 4 
years, that $2.4 trillion would have been reduced to one one-hundredth 
of that. One one-hundredth of $2.4 trillion is $24 billion. Now, I 
think the Clean Power Plan would have had a lot more of an effect on 
this calculation, as companies had to clean up their act, than 1 
percent, but I am taking a really low number just to make the point.
  Six hundred billion is a little bit low, 4 years is a little bit low, 
and 1 percent is probably very low, but when you put it together, the 
mathematics gets you to $24 billion that the industry saved by being 
able to go to this court and have it do the unusual thing--the 
unprecedented thing--of putting a stay on the Environmental Protection 
Agency.
  So if you are comparing--remember where we started on this was how 
shocking it was that somebody might spend $250 million in dark money to 
produce a court that would do unprecedented things like stay the 
regulation? Well, you do $250 million into $24 billion, it is a 100-to-
1 return on your investment. Put in a penny, get back dollar. Put in a 
dollar, get back 100 bucks. Put in $250 million, get back $24 billion.
  That is assuming this is the only case in which this mattered. As I 
have pointed out from this desk over and over again, we are now up to 
80 cases in which, on a 5-to-4 basis, with a partisan makeup to the 5-
to-4 and with a big Republican donor interest at stake, the court has 
ruled for the big Republican donor interest 80 times. The score is 80 
to 0, to be clear. So this is just one of those 80--a big one, mind 
you. A big one. These are big bucks that are involved but just 1 of 
those 80.
  So don't be surprised when the Washington Post reports that big, big, 
big corporate interests are willing to put $250 million into a scheme 
to pack the courts with judges who will make the ``right'' decision for 
the big corporate interests--not once, not twice, not 10 times, but 80 
times--because just that one decision alone paid back the whole $250 
million 99 times more. That is what we are up against, and that is why 
I am so determined to get to the bottom of what is going on, because 
everybody going into that Supreme Court has a right to an honest 
decision. Everybody has a right to a court that is deciding cases on 
their true merits and not because of ``conservative activists'

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behind-the-scenes campaign to remake the nation's courts in a way that 
makes people who give $250 million in dark money the big winners.''
  Madam President, at this point, I yield to my wonderful colleague 
Senator Merkley, and thank him for his leadership on the ``What's at 
Stake: Climate and the Environment'' report that we are speaking about 
today.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Madam President, what is at stake with our climate and 
the environment? Our planet. Our planet is on fire, literally. Historic 
wildfires are leaving our forests and rural communities in ashes. 
Oceans are growing hotter and more acidic, devastating sea life from 
the shellfish of Oregon to the coral reefs of the Great Barrier Reef.
  There is so much damage, not just to the natural world but to our 
tourists and fishing industries, to our forest industry, and to our 
farming industry, the pillars of our rural economy both in America and 
around the world. More frequent and more devastating storms damaging 
crops, flooding cities, destroying coastal communities--the climate 
crisis is a clear and present danger. We are barreling headfirst at 
full speed toward catastrophic, irreversible climate chaos, and these 
special interests that my colleague just spoke about and which we 
expose in this report are using every tool at their disposal, 
especially the courts, not to stop the damage but to accelerate the 
carnage.
  It shouldn't be too surprising that they should turn to these 
strategies. They can't turn to the citizens of the United States 
because protecting our world is popular among the American people. They 
favor clean air. They favor clean water. They think our government has 
a responsibility to protect that air and water and land, and, more 
broadly, to protect our planet.
  In fact, 70 percent of Americans say government is not doing enough 
to reduce the effects of climate chaos, and they are so right. That is 
why the fossil fuel companies know that they can't win outright based 
on their arguments--or certainly not based on their ideas. No one says 
``I want more lead in my water'' or ``I want more climate-damaging 
carbon dioxide or methane in the air.''
  So what do you do if you can't win fairly? You rig the outcome. You 
fund bogus research. You spend huge sums with media to publicize that 
bogus research. You increase your influence through a vast, large legal 
team. You build a powerful lobbying team on Capitol Hill and every 
State capital across this Nation. You handpick candidates, and you fund 
their campaigns. You seek to take over control of an entire political 
party.
  But Members of Congress come and go, and even when the deck is 
stacked, there is that possibility of a grassroots uprising of American 
people to overturn your carefully laid plans to control the American 
Government. So what do you do? Strategy No. 7, perhaps the most 
powerful strategy of all--you bias the courts. Once you get someone on 
the Federal bench, they are there for life. They can't be tossed out by 
a vote of the people, and they wield immense influence over the laws 
and regulations, certainly over our environmental laws and regulations. 
If you control the courts, especially the Supreme Court--even if you 
lose the White House, even if you lose the House and Senate, even if 
you lose all three at once--you have immense power over the laws of our 
land.
  Our Constitution was framed to build a government of, by, and for 
this people. But with control of the courts, the privileged few--the 
fossil fuel barons--have created, instead, government by and for the 
powerful. That is why we saw such a committed effort by our colleagues 
on this side of the aisle to block President Obama from filling 
hundreds of open seats on the Federal bench. That is why we saw the 
theft of the Supreme Court seat for the first time in U.S. history 5 
years ago. That is why the present majority leader is obsessed with 
ramming through more than 200 overwhelmingly White male, life-tenured 
judges, most of whom weren't chosen for their qualifications but for 
their rightwing ideology. And it is why 86 percent of Trump's nominees 
to the Supreme Court and the appellate courts are members of the 
Federalist Society.
  The Federalist Society, created in the 1980s--as described in the 
book, ``The Lie That Binds''--implemented an anti-Democratic policy 
agenda and political philosophy through a court system impervious to 
the will of the voters. It started one weekend with 200 conservative 
students and professors at Yale Law School, including Antonin Scalia, 
and it grew into the present-day shadowy behemoth promoting lawyers 
into prominent positions and starring far-right judges at every level 
of the bench to further corporate control--the powerful and privileged 
few over the will of the people.
  How are they funded? Untold millions from polluters and other 
corporate interests that benefit from judges who strike down 
environmental laws and related regulations enacted and pursued by the 
people.
  The Federalist Society is now, under Donald Trump, in charge of 
judicial nominations. He asked them to give him a list of whom he 
should nominate, and so it goes. The Federalist Society put Neil 
Gorsuch on that list, and President Trump nominated him. Justice 
Gorsuch, who said in the Chevron doctrine, a landmark decision that is 
the basis of 4 years of administrative and mariner law, which gives 
courts deference to administrative agencies and reasonable 
interpretations of statutes--ruled it should be overturned.
  The Federalist Society put Brett Kavanaugh on that list, and 
President Trump nominated him. Whenever the DC Circuit Court ruled to 
hold a corporate polluter accountable, Kavanaugh could be counted on to 
be in opposition of holding that corporation accountable. Observers 
call him a conservative critic of sweeping environmental regulations 
and a disaster for the environment.
  The Federalist Society put Amy Barrett on that list, and Trump 
dutifully nominated her. Amy Coney Barrett refused to answer whether 
climate change is real during her confirmation hearing. Her record is 
clear. In one case she ruled that a park preservation group couldn't 
sue to block a construction project in Chicago's Jackson Park. She 
signed an opinion that reversed the lower court decision that protected 
wetlands from being developed under the Clean Water Act.
  Earthjustice, an environmental nonprofit, remarked that her decision 
signaled Barrett's willingness to interpret environmental laws of the 
Clean Water Act narrowly in favor of industry interests--a perfect fit 
with the goal of the Federalist Society.
  The Federalist Society plays the tune, and their nominees dance the 
dance--the dance for government by and for the powerful and the dance 
that tramples on government by and for the people.
  If President Trump loses reelection and if Republicans lose the 
Senate majority, still, there is this court with this decision against 
the environment, against the worker, against civil rights time and time 
again, and a court that will work to stymie every effort to save our 
planet.
  There is a whole list of similar related positions in the lower 
courts with similar outcomes--corporate welfare over environmental 
stewardship, one judge after another after another. They are the 
examples of the pro-corporation, anti-environmental rulings and Trump-
appointed jurists that we feared. They are the kinds of challenges that 
are going to stand in our way if we fight to undo the damage that this 
administration and its cabal of extreme rightwing allies have unleashed 
on our democracy and on our planet. So now we have the responsibility 
to act.

  The report that Senator Whitehouse and I are releasing today--and I 
applaud him for working so hard to develop this whole set of Captured 
Courts reports to understand the power behind the shift from government 
by and for the people to government by and for the powerful, because if 
you have read the Constitution, if you believe in ``We the People,'' 
you believe in the spirit of a government that draws its very essence 
from the people of the United States, not from the cabal of extremely 
wealthy, extraordinarily White, significantly privileged, enormously 
powerful individuals trying to be puppet masters and destroy that 
vision that we so cherish.
  That is why we must expose it. That is why we must fight it. That is 
why we

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must reclaim--for the future of every child in America, certainly for 
the future of our environment here in the United States, certainly for 
the health of the planet, we must reclaim that vision of government of, 
by, and for the people.
  Thank you.
  The PRESIDING OFFICER. The Senator from Maine.
  Mr. WHITEHOUSE. Go ahead, Senator. I just wanted to see if we are 
going into the vote now, and, if so, whatever procedural steps you 
needed to take us into the vote, but I yield to the Senator from Maine.
  The PRESIDING OFFICER. The Senator from Maine.