California’s Administrative Power Grab Hurts Californians, Does Nothing For Climate

The Supreme Court's June 30th majority opinion in West Virginia vs. The Environmental Protection Agency affirmed the authority of the EPA to regulate carbon dioxide from power plants, including mandating the use of carbon capture and sequestration ("CSS") technologies in new and substantially modified power plants, but not its authority to require the nation's transition from electricity generated by coal to electricity generated by solar or other technologies.

With this decision, federal administrative agency jurisprudence requires Congress to lead on climate policy, sharply diverging from California court jurisprudence that allows state agencies to unilaterally mandate vast new climate policies, including those expressly rejected by the state legislature.

The West Virginia Court had initially stepped into EPA's power plant authority based on three conflicting, and subsequently withdrawn, unilateral climate actions of the Executive Branch: first, coal phase-out regulations promulgated under President Barack Obama; second, alternate regulations approved under President Donald Trump; and third, the announced but incomplete approval of new regulations under President Joe Biden.

On the back of these actions, the court used the resurgent "major question doctrine" to reason that how the nation supplies its need for electricity is simply too big a policy issue to be left to the climate experts at EPA, through whom each presidents' conflicting plans would be implemented. After all, there are many factors other than climate that are relevant to electric supply, such as reliability and affordability.

The Court did hold that Congress could legislate greenhouse gasses ("GHGs") and other climate issues under the Constitution, but it was unpersuaded by arguments that, through the Clean Air Act, Congress had already delegated expansive GHG regulatory authority to the EPA.

The West Virginia decision, while not unexpected, caused fear and fury among climate activists for whom dramatic and urgent GHG emission reductions are already long overdue, emergent CSS technologies are unacceptable, and faith in Congress' will to mandate major GHG reductions and end reliance on coal and other fossil fuels is low.

For defenders of West Virginia, though, the benefits are clear: In its decision, the Court simply required elected leaders to do their jobs within Congress: negotiate and agree on policies that work for most. And given our nation's vast diversity, an eco-modern optimist may argue that solutions arrived at this way may be far more effective in scaling up globally as we mark yet another year of increasing global GHG emissions and a dangerous return to the complex geopolitics of manipulated energy markets. Unlike both California and the United States, most nations have far less financial capacity to absorb high initial and ongoing energy transition costs—and without feasible climate solutions for these nations, global GHG emission trends remain problematic.

To see why an ecomodernist approach to finding solutions through the democratic process is more likely to result in a more just transition, consider California.

Governor Gavin Newsom has called his state, which boasts the world's fifth largest economy,^{California falls between Germany and the United Kingdom based on GDP. California (forbes.com) California also has the highest poverty rate, housing prices, unhoused population in the nation - and is slightly edged out by New York on income inequality. About 3.5 million families - about 9 million of Californians, almost all of which have at least one working adult and most of which have at least one child under 6 - do not earn enough income to meet monthly costs, even when public assistance and subsidy programs are taken into account. The Real Cost Measure in California 2021, United Way, https://www.unitedwaysca.org/realcost} a "Nation State." And after West Virginia, this Nation State's climate jurisprudence diverges even more radically from the nation's. Made by administrative agencies rather than elected officials, California's process has created a runaway train of agency autocracy, endlessly malleable without notice, disclosure, or oversight by the public or any elected representative. California's supermajority of Democrats, and the leadership of Progressive Democrats, even approved a statute giving public agencies the same protected free speech rights as individuals, as well as the right to summarily dismiss lawsuits and collect attorneys' fees against anyone challenging the agency's free speech "right" to undertake any "official" action.

One may want to believe that, issues of democracy aside, California's climate jurisprudence had at least produced good outcomes for the planet. Instead, its climate regulations have imposed massive costs, and few GHG reductions beyond the phase-out of electricity imports from coal plants—or as former Governor Jerry Brown quipped, much of California's claimed GHG reductions came from weather, not regulatory "hype."

For example, based on the GHG inventory methodology adopted by the California Air Resources Board ("CARB"), the state's leading climate agency, California's entire economy emits less than 1% of global GHG, and California's per capita GHG is the lowest in the nation. Under these metrics, California could cease to exist with no effect on the planet's climate. That fact prompted former Governor and now pro-China climate hawk Jerry Brown to explain that state actions will be "futile" unless other states and countries could be persuaded to follow California's lead.

Yet neither Californian agencies seeking omnipotence nor Congress fighting impotence results in meaningful, effective, or equitable climate policies. As with all administrative law matters, for both the Nation and Nation-State, elected leaders must lead, compromise, and enact climate change policies within the separation of powers framework established by our democratic republic. Clearly, at the national level, climate advocates must win hearts and minds politically and not rely on a four-year election cycle or lawyers in robes for climate change solutions. And to influence planetary climate, California's climate experts are long overdue for a strong dose of civil rights, humility, transparency, and accountability.

When is a Bumble Bee a Fish?

"Chevron deference" is an administrative law interpretation doctrine, or "canon," that was recognized by the Supreme Court in 1984 in a Clean Air Act case involving the EPA's regulation of complex industrial facilities. Under Chevron, the Supreme Court directed lower courts to generally defer to the expertise and judgment of administrative agencies in interpreting and applying the inevitably less specific laws enacted by Congress.^{Chevron, U.S.A. v. Nat. Res. Def. Council, 467 U.S. 837., 844 (1984)} In West Virginia, the majority and concurrent opinions do not even cite Chevron deference and instead offer up other administrative law canons to reject allowing the EPA to approve a national regulatory regime around generating electricity.

In contrast, California courts have gone well beyond Chevron deference and passed through Alice's looking glass to uphold unprecedented administrative agency assertions of expansive authority based on climate concerns.

For example, just a few days before West Virginia was decided, California's venerable Associate Justice Ronald B. Robie wrote an opinion for the influential Third District Court of Appeals (sitting in Sacramento) upholding a new agency interpretation that a 1969 statute defining the term "fish"^{Section 45 of the California Fish and Game Code reads in its entirety: “‘Fish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” .” Cal. Fish & Game Code § 45} actually and for the very first time included "non-marine invertebrates"^{Almond All. Of California v. Fish and Game Comm’n, No. C093542, slip op. at 35 (Cal. App. May 31, 2022)} including a bumble bee.^Id.

The appellate court was unpersuaded by decades of past agency interpretations that insects were not fish, and insects were, in fact, ineligible for listing under California's endangered species laws, even though these decades-old agency interpretations were further supported by more recent law review articles^{Eric Biber, Reforming the California Endangered Species Act, 44 UC Davis L. Rev. 127, 156-158 (2021)} as well as the formal opinion of the California attorney general.^{Almond All., No. C093542 at 15} The agency's new interpretation that invertebrate insects are included in the definition of "fish" empowered the agency to conclude that farming and other operations that could result in the death or injury of bumblebees or their habitat can be regulated, and that such regulations can be enforced with civil or criminal penalties under state endangered species laws adopted decades earlier. Concerns raised by farmers about the unprecedented new regulation of important pollinators on the 1.25 million acres of almond orchards in California were simply waved aside by the court's unprecedented deference to agency climate action.

Why the Legislature Gave Up Its Power

Unlike Congress, the California legislature has enacted many climate statutes, two of which broadly delegate to the CARB the authority to achieve the legislature's specific climate goals: the Global Warming Solutions Act (AB 32/SB 32), which directs CARB to reduce California's GHG emissions to "at least" 30% lower than 1990 by 2030, and SB 375, which directs CARB to establish regional greenhouse gas reduction targets as part of housing, transportation, and employment projects to reduce GHG emissions from passenger cars and trucks.^{Global Warming Solutions Act, Cal. Health & Safety Code D. 25.5; Cal. Health & Safety Code § 38566.}

CARB enthusiastically embraced both broad delegations while forcefully opposing and otherwise failing to comply with other legislation aimed at increasing the oft-criticized lack of transparency, accountability, and effectiveness of CARB actions. For example, in its most recent five-year "Scoping Plan" for reducing GHGs under AB/SB 32, CARB states: "This plan is fundamentally based on hope."^{California Air Res. Bd., 2022 Draft Scoping Plan ix (May 10, 2022)} CARB continues, "California has never undertaken as comprehensive, far-reaching, and transformative an approach to climate change as this plan," and acknowledges that the plan affects "every aspect of how we work, play, and travel in California."^Id. The plan also explains its consequences: its "approval… catalyzes a number of efforts, including the development of new regulations as well as amendments to strengthen regulations and programs already in place; not just at CARB but across state agencies."

To delegate to an administrative agency, even under the generalized and aspirational text of AB/SB 32, the power to regulate "every aspect of how we work, play and travel in California" would surely fail to pass muster under the Constitutional separation of powers law. And it certainly would run afoul of West Virginia, where the Court concluded that even EPA's regulation applicable to the fraction of the nation's electricity supply required Congressional, not agency, policy approval.

But California's courts don't seem to mind. For example, even though these five-year Scoping Plans include measures that are immediately implemented without any new statutes or regulations, CARB persuaded an appellate court that an earlier Scoping Plan was, in fact, not a regulation and therefore not even subject to judicial scrutiny under California's administrative procedure laws.^{Ass’n of Irritated Residents v. California Air (Res, No. A132165, slip op. at 1 (Cal. App. Jun. 19, 2012)} CARB then lost—twice—lawsuits alleging that it had failed to comply with another broad California statute, the California Environmental Quality Act ("CEQA"), before adopting formal climate regulations, only to be allowed by the courts to continue enforcement of these presumptively beneficial climate regulations and conduct a post hoc third round of environmental review under CEQA.^{POET, LLC v. State Air Res. Bd., 12 Cal. App. 5th 52 (Apr. 10, 2017) (“POET II”)}

As with Almond Growers, the appellate court again bent over backward—twice—to empower CARB's expansive climate regulatory agenda even when CARB threw the state's iconic CEQA environmental law under the bus, and even when the appellate court found that CARB acted "in bad faith" in its second-round violation of CEQA.

Follow the Money

California is the nation's largest state by population, has the highest urbanized area densities, most immigrants, largest economy—and it has a vast and diverse range of urban, suburban, and rural communities crammed onto only 6% of the state's geography. Even though the state legislature has a supermajority of Democrats, there are still sharp divisions on climate policies between, for example, the wealthy coasts largely dependent on keyboard jobs and the vast inland where the agricultural, mineral, oil and gas, and manufacturing sectors produce the most jobs. In turn, among the climate mandates rejected by the legislature are things like carbon neutrality and 80 percent GHG reduction targets; the shuttering of Californian oil and production in favor of importing more oil from Saudi Arabia, Venezuela, and Russia; bans on the sale of new cars and trucks as of 2035 that use gasoline or diesel fuel; and mandatory reductions of "vehicle miles traveled" by ordinary Californians in personal cars and pickup trucks that apply even to all-electric vehicles.

But the legislature is no match for the imperial power of agencies, backed by special interests advocates and empowered to collect and distribute funds to its supporters. For example, when the legislature rejected a ban on new cars with internal combustion engines, the governor imposed it by executive order, and CARB is on track to implementing regulations surcharged by its latest proposed "scoping plan." CARB's action simply ignored the robust and diverse input from the overwhelming majority of Californians who need cars (including low-cost used cars) to get to work and complete daily chores and emasculated the civil rights advocates who successfully persuaded the legislature to allow undocumented immigrants to obtain drivers' licenses because personal mobility is critical for the 93% of Californians who do not use transit, or bikes, or walk, to work.^{Over 1,000,000 undocumented immigrants have obtained Drivers’ licenses under this law, SB 60, as of 2018. Nicole Darrah, California gave driver’s licenses to 1 million undocumented immigrants, New York Post (Apr. 5, 2018); see also Dashboard - Tracking Progress - Sustainable Communities, Cal. Air Res. Bd., Dashboard - Tracking Progress - Sustainable Communities | California Air Resources Board}

Indeed, the legislature has repeatedly declined to require that Californians drive less, including, for example, in SB 375 (for which a proposed VMT reduction mandate was expressly deleted in 2008 in favor of regional GHG reduction targets structured to account for and preserve local transportation and mobility while meeting housing and job growth objectives), and in several subsequent bills^{Complaint for the Petitioners/Plaintiffs, The Two Hundred v. Governor’s Off. For Plan. And Rsch. (Cal. Sup. Ct.)} CARB rejected the legislature's decision, first with a non-regulatory "methodology" decree that VMT reduction was the only form of GHG reductions CARB would recognize under SB 375, and then in AB/SB 32 Scoping Plan including the 2022 Draft Scoping Plan prescribes measures that now total 30% reduction in VMT from passenger miles and trucks.^{Cal. Air Res. Bd., Draft 2022 Scoping Plan (2022). Based on CARB’s published model spreadsheets, the Plan assumes that medium and heavy duty truck VMT will increase at the same rate as the BAU scenario, but requires reducing “per capita” VMT by 22% from 2019 levels by 2045. To achieve this, the spreadsheets indicate that light duty vehicle VMT car and pickup trucks equates to a 30% VMT reduction target. The Plan acknowledges that VMT reductions are not on track to meet 2017 Scoping Plan goals, which the 2022 draft Plan states as 12% below 2019 levels by 2030. Id. at 48, and that “individuals are driving more miles per day than ever before.” Id. at App. E, p. 4. The Plan attributes multi-year failed policies to reducing VMT to autocentric single-family home and other single use zoning.} In another report, CARB has confirmed that actual VMT has actually increased as ridership on expanding transit systems has decreased, and it has proposed to grant itself the authority to plan and approve future housing, employment, and transportation infrastructure, presumably to assure that future Californians live in small rental apartments without parking, and ride the bus, bike, or walk to their daily destinations.

Beyond CARB's vast power over environmental regulation, it also has unfettered discretion to disburse without legislative budget authorization about $4 billion of "cap and trade" program dollars (most paid for by Californians at the gas pump in amounts not disclosed on pump labels that otherwise inform consumers of gas taxes). It is yet another way CARB is able to blow past the checks and balances established in both the constitutions of the nation and the Nation-State, making the Green New Deal's most ardent national advocates green—with envy.

How CEQA Swallowed All Other Laws

In 1970, under then-Governor Ronald Reagan, California enacted CEQA to require agencies to disclose to the public, analyze, and use feasible means to avoid, or minimize, the significant environmental harms of agency actions. CEQA is enforced by lawsuits filed against agencies that either directly undertake public projects, or decide whether and under what conditions to approve private projects. In the first California Supreme Court decision to consider a CEQA lawsuit (against 184 small condos on a 5.5-acre parcel in a ski resort), the court directed the rescission of the housing project's approval. It is noted that CEQA is "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language."^{Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 259 (1972).}

Over the next 50 years, CEQA has become what former Governor Jerry Brown called a "blob" that changes shape as dozens of new judicial interpretations of CEQA are published each year. Beloved of all who seek to block new construction of any kind and of all those who seek monetary, employment, or other enrichment from agencies and private parties trying to build anything anywhere, CEQA has defied decades of even small surgical reform efforts, with the most notable exceptions being the legislature's own office remodel or billionaire club projects purchasing indulgences in one-off votes.

CEQA in practice bears scant resemblance now to any kind of "environmental" statute, as shown, for example, in an 11-year procedural lawsuit seeking to block a replacement single-family house which was unanimously endorsed by surrounding neighbors, the Berkeley Planning Commission, and Berkeley City Council; the project was abandoned, and the homeowner decided to raise their children elsewhere. CEQA is very cleary, however, a population control statute as many CEQA "impacts" consist of nothing more than making daily life a bit more difficult, as shown in a recent appellate court decision favoring neighbors in an enrollment dispute about the University of California's flagship campus in Berkeley, in which the court-mandated UC's denial of enrollment to about 3,000 students based on an insufficient analysis of "impacts" of student activities like creating noise, and engaging in activities like drinking water and flushing toilets.

California state Senator Scott Weiner has called CEQA "the law that swallowed California." The California Supreme Court supercharged CEQA's climate mandate when it decreed that all agencies considering the climate change impacts caused by projects must use "best available scientific data."^{Cleveland National Forest Foundation v. San Diego Ass’n of Governments, 3 Cal. 5th 497, 518 (2017)}The vast majority of CEQA project reviews—and thousands occur annually—are conducted by city and county officials with no particular global climate expertise.

I myself have been practicing CEQA law for over 30 years. CEQA's most common judicial remedy is the rescission of project approvals. Agencies lose about 40% of CEQA lawsuits, usually because a judge wants more study of small issues in one of the more than 100 topics that must be examined (or the infinite number of topics that litigants can argue should have been studied). Litigating CEQA cases is like trying to get 100% on essay questions from law professors, except that even a 99% grade is a failing score, after which project approval is rescinded—sometimes after years, and sometimes even after the project has been built and occupied.^[25]

The federal version of CEQA, the National Environmental Policy Act ("NEPA"), is nowhere near as fecund in spewing forth newly discovered judicial interpretations of agency environmental mandates as CEQA.^{Jennifer Hernandez & Stephanie DeHerrera, Perspectives from the Field: The National Environmental Policy Act in the Ninth Circuit: Once the Leader, Now the Follower?, 16 Env’t Practice 329 (2014)} In fact, the U.S. Supreme Court has never ruled that an agency failed to comply with NEPA. The heads of most of today's Justices would likely implode if they had to apply to NEPA the CEQA jurisprudence as it exists today.

SLAPP: Nope, You Can't Sue Politically Favored Agencies, But You Must Pay Agency Attorneys Fees if You Try!

As a Berkeley Democrat, I well remember the outrage aimed at the Supreme Court's decision in Citizens United, which, as one law professor explained, "further tilted political influence toward wealthy donors and corporations" in overturning campaign finance restrictions as infringements on the "free speech" of corporations, unions, advocacy groups, and other entities that were not human beings.

Citizens United is a model of Constitutional restraint compared to California's law prohibiting individuals, religious institutions, businesses, and other parties from seeking judicial review of unlawful agency conduct. In a litigation tactic honed during the COVID crisis, when Executive Orders and agency decrees were appearing (and being modified) on a near-daily basis by the governor and various state and local officials, parties alleging harm from COVID orders—such as churches, retailers, and landlords—sued the governor and various agencies over the legality of these COVID-related decisions.

The California attorney general then unleashed a daunting new litigation tactic against those petitioning the court to review administrative decisions by filing motions to dismiss, alleging that these lawsuits violated First Amendment free speech and petition rights of the official or agency. The legislature obligingly empowered this tactic to explicitly define, and further direct courts to broadly construe, such protected free speech rights—defined to include any "written or oral statement or writing" in "any . . . executive . . . proceeding . . . or any other official proceeding authorized by law" in a state statutory prohibition against "Strategic Lawsuits Against Public Participation ("SLAPP ").^{Anti-SLAPP statutory prohibitions were adopted by dozens of states in the 1990s, largely at the urging of as consumer and environmental protection groups who lacked the resources to defend themselves from slander, libel, or other claims filed against them by corporate targets of their consumer and environmental claims. History of Slapps, Protect the Protest, History - Protect the Protest California’s Anti-SLAPP statute was updated in 2018, to define “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” to include “any written or oral statement or writing made in connection with an issue under consideration or review by a[n] . . . executive. .. body, or any other official proceeding authorized by law,” now being interpreted to shelter any written or oral statement by an elected official or agency staff engaged in “any official proceeding authorized by law.” Cal. Code of Civ. Proc. § 425.16} The attorney general further argued that the state was entitled to recover its attorneys' fees against those filing such lawsuits to compensate the state for its defense costs, and to dissuade others from filing such lawsuits. As a practical matter, most Anti-SLAPP Motions—and most COVID-related challenges to agency decisions—were mooted by the passage of time.

California's attorney general has expanded this COVID anti-SLAPP litigation tactic against parties challenging administrative climate decisions.

A case in point: In 2018, California's powerful climate agency, the California Air Resources Board ("CARB"), first determined that a biodiesel additive met the eligibility criteria established under its low-carbon fuel regulations. But following a complaint from the company's competitor, CARB later investigated and rescinded its initial determination. In the absence of any CARB administrative appeal process, the biodiesel additive company sued for declaratory judgment to obtain judicial review of the agency's final determination. The attorney general, representing CARB, filed an anti-SLAPP motion against the company that filed the lawsuit, alleging that CARB itself had a protected right of free speech as well as a protected right to petition the court to object to judicial review of CARB's administrative decision; CARB also sought reimbursement for all its attorney's fees.

CARB lost in both trial and appellate court; the appellate court determined that the business lawsuit "did not relate to protected activity, statements or communications of [C] ARB's staff and, instead, sought an adjudication related to [C] ARB's investigation and to its interpretation of its regulations."^{Best Energy Sols. & Tech Corp. v. State Air Res. Bd., No. F082207, slip op. at 6 (Cal. App. May 7th, 2022)} This appellate court decision was "unpublished," meaning it cannot be used to prevent similar motions to quash lawsuits against administrative actors, as well as require those seeking judicial review to incur greater legal costs and risk having to pay the state's fees as well.^{Other California agencies are also aggressively using Anti-SLAPP Motion to prevent judicial review of official agency actions. For example, in Verceles v. Los Angeles Unified School District, 63 Cal. App. 5th 776 (2021), a teacher sued the Los Angeles school district alleging unlawful termination; the district filed an Anti-SLAPP Motion against the teacher, alleging that its investigation and decision to terminate the teacher were “protected speech.” The District won at the trial court level, exposing the terminated teacher to treble damages, but ultimately lost at the appellate court which concluded that the district’s investigated was protected but its termination decision was not.}

Many more of these anti-SLAPP motions have been decided or remain pending, at the trial court level where the absence of media scrutiny and published legal precedent are the rule rather than the exception. Also noteworthy is the absence of anti-SLAPP motions in lawsuits filed by climate advocates against disfavored agencies, such as the state agency required to issue oil and gas extraction permits. With authoritarian zeal more commonly associated with China and Russia, California's elected attorney general and governor have wielded their anti-SLAPP motion sword to empower agencies to ignore (aka violate) state statutes directing permit approvals. Challenge climate agency diktats in our Nation State and be prepared to spend hundreds of thousands paying your and the state's attorneys' fees.

The Racism of California's Climate Regime

On behalf of our civil rights clients, in 2018, we sued CARB to challenge four anti-housing/homeownership measures contained in its 2017 Scoping Plan. We showed how these measures exacerbated residential racial discrimination and increased poverty and homelessness in communities of color.

As I wrote in Green Jim Crow, this is only one example of racist agency action cloaked under the climate banner. In fact, racism is alive and well in California Democratic party strongholds like Marin County (the governor's home before he moved to Sacramento), and in environmental organizations and the philanthropic foundation funders of environmental organizations more broadly.^{Research from scholars at Northwestern University found that half of philanthropic funding on climate issues goes to 20 national organizations; that data was then analyzed by the Solutions Project in 2019 finding 90% of those organizations to be led by white people, 80% by men. Justice + Equity, The Solutions Project, Justice + Equity - The Solutions Project.} For example, another routinely unreported fact about our Nation State is UC Berkeley's findings that racial segregation in the woke Bay Area is worse today than it was before Dr. Martin Luther King, Jr. was assassinated.

When we brought the CARB case, I naively expected longtime environmentalists, with whom I had served for decades on various environmental non-profit Boards of Directors, to acknowledge that they had made some policy mistakes. We don't even have a civil rights framework that recognizes fair housing act laws within any of California's environmental statutes and regulations; at most, California recognizes "environmental justice," which has roots in opposing local pollution sources and conditions, and has opposed many mainstream environmentalist climate policies including those supported by the Biden administration.^{West Virginia v. Env’t Pro. Agency, No. 20–1530, slip op. at FN 3 of Gorsuch, J. concurrence (U.S. Jun. 30, 2022)}

What I could not have anticipated from my law school classmate, former California attorney general, and now HUD Secretary Javier Becerra, was the bold-faced legal argument that CARB could constitutionally approve and implement racially discriminatory housing policies that caused disparate harms to communities of color—including to my family. This argument was made in two pleadings filed in an unsuccessful demurrer to dismiss our lawsuit outright; the state attorney repeated the argument in Judge Cardozo's court in Fresno County. She rejected it as well. In other words, the top Democrat Latino law enforcement official in the deepest of deep blue states had decided to defend a top-down administrative agency climate prescription that exacerbates residential segregation and worsens the housing, poverty, and homelessness crises that plague California.

In defending instead of mending racist and wholly ineffective climate housing policies, California's climate agencies and their lawyers openly and enthusiastically embraced the foundational racism of the Progressive Movement's founder, Woodrow Wilson. He is also cited at length in Footnote 3 of Justice Gorsuch's concurrence in West Virginia:

"Woodrow Wilson famously argued that 'popular sovereignty' 'embarrasse[d]' the Nation because it made it harder to achieve 'executive expertness.' The Study of Administration, 2 Pol. Sci. Q. 197, 207 (1887) (Administration). In Wilson's eyes, the mass of the people were 'selfish, ignorant, timid, stubborn, or foolish.' Id., at 208. He expressed even greater disdain for particular groups, defending '[t]he white men of the South' for 'rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].' 9 W. Wilson, History of the American People 58 (1918). He likewise denounced immigrants 'from the south of Italy and men of the meaner sort out of Hungary and Poland,' who possessed 'neither skill nor energy nor any initiative of quick intelligence.' 5 id., at 212. To Wilson, our Republic' tr[ied] to do too much by vote.' Administration 214.^{West Virginia v. Env’t Pro. Agency, No. 20–1530, slip op. at FN 3 of Gorsuch, J. concurrence (U.S. Jun. 30, 2022)}"

California's Progressive climate bureaucrats and lawyers are indeed followers of Founder Wilson. The necessity of ending representative Democracy to combat climate change was bluntly presented in Political Legitimacy, Authoritarianism, and Climate Change, a peer-reviewed article published in December 2021 in the American Political Science Review by the Cambridge University Press.^{Ross Mittiga, Political Legitimacy, Authoritarianism, and Climate Change, Am. Pol. Sci. Rev. 1-14 (Dec. 06, 2021)} The author argues that it is a legitimate empirical question warranting exploration as to whether an authoritarian regime is required to ensure "safety and security" given the climate crisis. The author argues that lessons learned during the COVID pandemic—which included the imposition of "severe limitations on free movement and association"—were shown to be legitimate and appropriate "techniques of government."

COVID also brought us the Nation State's assertion that agencies can evade judicial review of their conduct based on the "free speech" rights they've been granted in "official proceedings."

I'm a native Californian, a scholarship kid—Harvard and Stanford law—and a Latina from a family of union trade wage earners. I don't know of a top-down authoritarian regime that's done well for people like my family and me. As the United States self-sorts into partisan geography, there are people, families, communities, counties, and regions that find themselves behind the line, stranded among dogmatic dictators pretending to be righteous elites. Most of us want to be mostly left alone, to work and raise our families, and adjust, as needed, to change—in jobs, technology, housing, education, monetary policy, and climate. In our Nation State, we don't trust the government to do much of anything right: it costs too much, produces too little, and nothing happens for too long.^[2]

In West Virginia, the U.S. Supreme Court told Congress to enact climate policy laws—or not—but concluded that the Constitution requires that only the legislative branch can make big laws.

The Nation and Nation State have the same separation of powers provisions in our respective Constitutions. The Nation State has a representative Legislature, but also a one-party super-majority. And that is where the trouble starts. California's administrative law jurisprudence should be able to accommodate agency implementation of laws enacted by the legislature without deciding that a bumblebee is a fish, or that an agency has a financially coercive free speech immunity from judicial review, or that CARB diktat can "swallow" all of our civil rights, housing, transportation, and labor laws.