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The United States Supreme Court opened a new term with a blockbuster climate case on Monday. The Roberts court has systematically gutted environmental protections in recent years, but Suncor v. Boulder presents an opportunity for Republican-appointed justices to foreclose one of the few remaining avenues for legal accountability for fossil fuel polluters. On this week’s Amicus podcast, longtime environmental advocate and Supreme Court critic Sen. Sheldon Whitehouse of Rhode Island joined Dahlia Lithwick to discuss how Suncor is the latest play in Big Oil’s long game at the court. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: The way this case arrives at the Supreme Court is a signal of how little congressional prerogatives matter to the fossil fuel industry, how little states’ rights matter to the fossil fuel industry, how little the plain text of a statute matters. The argument they’re advancing, as I can tell, is constructed out of preemption vapors. 

Sheldon Whitehouse: Thin air. The tell here is that, once again, the supposed “conservative” principles of the captured court’s obedient justices are disposable. They pull them out when it’s useful and get them to the right result, and they ignore them when they’re not useful and don’t get them to the right result. So, originalism, textualism, federalism, states’ rights—these are all old school “conservative principles,” but let’s say you go back to Citizens United—try to find a textual basis for corporations having rights in American elections, particularly to proceed anonymously behind front groups; it can’t be found. It’s not textual, it’s not originalist. The Founding Fathers’ heads would have exploded if they thought that legal fictions were going to play a dominant role in American politics. So this is yet another exhibition of the doctrines of convenience that these justices trot out when they help and just coldly ignore when they don’t lead them in the direction that their big donors want.

This court has been the delivery agent for its fossil fuel clients on a very consistent basis. This is something that is very well-known in administrative law and in economics—this concept of agency capture or regulatory capture. The original sin of agency capture would be mining millionaires getting all of their cronies onto the mine safety commission so they got only the rules that they wanted. Or railroad barons getting all their........

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