OPINION: Court politics, the regulatory state and Alaska resource development

In the days before President Joe Biden stepped aside from the presidential race, he was willing to try anything to revive his political fortunes. In transparent efforts to shore up his progressive bona fides, Biden announced another $1.2 billion worth of student loan forgiveness and is even entertaining proposals to set term limits on Supreme Court justices.

It is no surprise that this coequal branch of the federal government is under Biden’s scrutiny, as they have ruled against him in several high-profile cases like EPA v. West Virginia, which curtailed the Environmental Protection Agency’s scope, the “Chevron Deference” case of Looper v. Raimondo, which returned powers from the executive branch to the Congress, and most notably Trump v. United States, which recognized former president Donald Trump’s immunity from prosecution.

Biden’s latest proposal is not so much a reform as it is a vendetta.

Progressives have often used the courts to exact an outcome unintended by the law and administrative state. Hence the latest decision by U.S. District Court Judge Sharon Gleason blocking oil and gas lease sales in Cook Inlet. Well-funded activists can always find a reason to introduce legislation, and judges like Gleason, appointed to the bench by former president Barack Obama in 2011, can halt a congressionally mandated process of lease sales highlighting that the power to exact change lies not in the law, but in the courts.

The invocation of the beluga whale is clever, as almost everyone (minus Captain Ahab) loves whales and desires that they be protected. It’s clever because as environmental groups litigate for their protection in Alaska, the Atlantic Coast simultaneously has seen more than 200 whales mysteriously perish in recent years, met with litigation silence from these same groups. One can only speculate if whale protection is the de facto motivation or a mere mirage.

Alaskans must marvel that only six months ago, temperatures reached 60 below zero and snow accumulation broke records. We weathered the storm as we always do, not just because of our resilience but also thanks to increased supply of natural gas that Judge Gleason’s decision is aimed at preventing. During the coldest week of winter, Alaska’s natural gas suppliers increased their output to prevent human suffering and harm.

Elected officials also have a role to play here. It is incumbent on our leaders to determine infrastructure needs: electric grid, heating and other utilities, in preparation for another inevitable harsh winter.

In assessing the risk oil and gas lease sales pose to beluga whales, there was no such concern in Judge Gleason’s ruling on the absence of natural gas and the risk to the people of Alaska. In fact, I see no such litigation on behalf of the people of Alaska to prevent their extinction. That is the tacit role of the executive branch: the president, governors and mayors, heretofore with need for lobbyists and nonprofit groups threatening litigation.

Progressives have always seen the courts and litigation as the means to advance an ideology without the quite public and often messy part: legislation. Hence the famous quip from Otto Von Bismarck: “Laws are like sausages, it is better not to see them being made.”

Members of Congress, even the most outspoken progressives, are slow to introduce legislation that requires taking a vote. In an election year, such action is unnecessarily risky, agenda be damned.

For all his progressive action, Biden has done little through the legislative process. Environmental measures have come via the administrative state and the agencies. Student loan forgiveness has come through executive action. No members of Congress have proposed amending the lease sales in Cook Inlet or other areas of the U.S., and for good reason. The same goals can be achieved via the courts without having to cast a recorded vote in Congress.

Thus explains Biden’s desire to “reform” the Supreme Court. It has prevented the full execution of his political imperatives, and it was designed to do just that. Not only has it repeatedly corrected actions outside the jurisdiction of the President but it has amended misguided decisions made by lower courts, often at the behest of activist groups.

It’s also ironic that Biden, who has been in elected office since 1972, is considering term limits for others.

During the last three decades, federal regulations have grown by more than 100,000. This red tape has provided activist groups ample material to find cause of action for incessant litigation, to push an ideology, any ideology, outside of the regular democratic process of lawmaking.

The role of a judge is never easy, and in every verdict a judge issues, one side will always lose. However, in Alaska, and often in most environmental laws, the losing side extends to the health, safety, and well-being of the American people.

Anchorage elected officials must prepare for winter, which will be upon them soon. Let us hope that this and similar decisions that abuse a bloated regulatory state do not make their jobs any more difficult than they already are.

Rick Whitbeck is the Alaska State Director for Power The Future, a national nonprofit organization that advocates for American energy jobs. Contact him at Rick@PowerTheFuture.com and follow him on X (formerly Twitter) @PTFAlaska.

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