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  1. Defenders of Wildlife (1992), the Supreme Court laid out several hurdles that all plaintiffs must overcome if they wish to bring their case before a federal court. Among other things, a plaintiff must not only show that they are injured in some way by the defendant’s actions, this injury must be “actual or imminent” and not “conjectural” or “hypothetical.“

    The West Virginia plaintiffs’ best argument that they clear the bars established by Lujan flows from an opinion a federal appeals court handed down the day before President Joe Biden took office, in January 2021. That lawsuit, American Lung Association v. EPA, challenged a Trump-era rule, euphemistically named the “Affordable Clean Energy” (ACE) rule, which replaced Obama’s Clean Power Plan with weaker standards.

    In American Lung Association, the appeals court determined that Trump’s EPA relied on a “mistaken reading of the Clean Air Act” when it repealed the Clean Power Plan and replaced it with a different policy. This decision didn’t simply strike down the ACE rule, moreover, it also arguably struck down the Trump administration’s decision to repeal the Clean Power Plan. Thus, for a brief moment, the American Lung Association decision appeared to breathe life into the Obama administration’s zombie plan.

    But if Clean Power Plan stans hoped to see this policy implemented, their hopes were swiftly dashed. Shortly after American Lung Association was handed down, Biden’s EPA announced that it did not read that decision to reinstate the plan. “As a practical matter, the reinstatement of the CPP would not make sense,” the EPA explained in a very brief memo, in large part because, as already mentioned, its goals were already accomplished.

    Then, to cement this understanding, the EPA asked the appeals court to stay the parts of its decision that arguably reinstated the Clean Power Plan while the EPA writes an entirely new rule — and the appeals court granted this request in a February 22, 2021, order.

    The result is that there is currently no rule in effect governing the power plants that would have been regulated by the Clean Power Plan. Trump’s rule is dead, and the only court order that could be read to reinstate the Obama-era rule has now been stayed.

    In theory, the appeals court could lift its stay — although the EPA has given no sign that it will ask the court to do so. And it is still possible that whatever new rule the EPA comes up with will injure the West Virginia plaintiffs in some way.

    But recall that Lujan does not permit plaintiffs to bring a federal lawsuit if their injury is merely “conjectural” or “hypothetical.” All that the West Virginia plaintiffs have right now is conjecture that, at some point in the future, either the EPA or an appeals court might take some hypothetical action that might injure them in some way.

That’s not a valid basis to sustain a federal lawsuit.

If the Court doesn’t dismiss the West Virginia case, it could fundamentally alter the balance of power between the elected branches and a GOP-controlled judiciary

The West Virginia plaintiffs ask the Court to answer a few closely related questions: Does the federal Clean Air Act permit the EPA to implement the Clean Power Plan (assuming, of course, that the EPA actually wanted to do so)? And does the Constitution permit Congress to delegate such authority to a federal agency?

The Clean Air Act requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, while also accounting for factors such as cost. But the question of what the “best system” is to reduce emissions at any given moment is a moving target — the technology that exists today is a great deal more sophisticated than the emissions-reduction technology that existed in the 1970s.

So Congress tasked the EPA with monitoring technological advancements, and imposing stricter emissions standards on power plants when new developments make it possible for those plants to achieve more ambitious emissions reduction goals.

The Clean Power Plan was supposed to be the Obama-era EPA’s best effort to comply with this obligation, but the coal industry and red states argued it had overstepped the Clean Air Act’s bounds.

Now the West Virginia plaintiffs raise several different legal arguments against the nonexistent Clean Power Plan, several of which could permanently hobble the federal government’s power to regulate if adopted by the Court.

A brief filed by several senior red-state officials, for example, rests heavily on the “major questions” doctrine, a legal doctrine that is currently fashionable among Republican judges but that was also invented entirely by judges and has no basis in any statute or provision of the Constitution.

The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.

One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.

The unusual history of the Clean Power Plan, however, should give the justices some pause about their ability to determine which regulations have vast significance. Seven years ago, the argument that the Clean Power Plan would require much of the energy industry to remake itself in order to comply with a new government mandate seemed plausible. Now the Clean Power Plan looks like a dud.

If the army of policy experts, industry analysts, advocates, and coal executives who all evaluated the likely impact of the Clean Power Plan in 2015 were so wrong, why should we trust nine lawyers in black robes to get this answer right?

Other briefs in the West Virginia case suggest that the Clean Power Plan violates the “nondelegation doctrine,” another judge-created doctrine that limits Congress’s power to delegate the power to issue binding regulations to federal agencies. This doctrine is even more vague than the major questions doctrine, and even more capable of being applied selectively to strike down regulations that a particular panel of judges do not like.

As Justice Neil Gorsuch described nondelegation in 2019, a federal law authorizing an agency to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.” How “precise” must the law be? That’s up to judges to decide.

Notably because this doctrine outright forbids Congress from delegating certain powers to an agency, a Supreme Court decision that struck down the Clean Power Plan on nondelegation grounds could permanently strip Congress of its power to authorize the EPA to issue major regulations in the future. Indeed, depending on how broadly the Supreme Court worded such a decision, it could impose drastic new limits on every single federal agency.

In any event, the issues at stake in West Virginia can be summarized fairly concisely. It is a case about a regulation that does not exist, that never took effect, and that would have imposed obligations on the energy industry that it would have met anyway. It also involves two legal doctrines that are mentioned nowhere in the Constitution, and that have no basis in any federal statute.

And yet, West Virginia could wind up permanently hobbling the government’s ability to fight climate change.

Rogan’s evolving influence is as unwieldy as it is massive

Rogan got his start in comedy and still primarily identifies as a comedian — though that may be difficult for people who are mainly familiar with his more recent career to parse. As a standup comic, he performed in Boston, then moved to Los Angeles and scored roles on the ’90s sitcoms Hardball and NewsRadio. His comedy career continued around his entertainment jobs, including the role that launched him into stardom: the often confrontational host of NBC’s “eat these worms” reality show Fear Factor. Rogan has said he took the job as Fear Factor host so he’d have more material for his standup routines. But in fact, his hosting abilities would pave the way for a career in podcasting.

When Rogan began The Joe Rogan Experience on Christmas Eve in 2009, the landscape of podcasting looked hugely different from how it looks today. Some legacy media had forayed into the podcasting world, most notably This American Life, which began distributing episodes as a podcast in 2006. But barring some rare exceptions, podcasting was almost entirely an independent, amateur, grassroots space — not an industry at all, but rather a community of predominantly high-income, extremely online tech nerds, mostly men, flocking to the audio equivalent of a blog. The small-town intimacy of podcasting in those days allowed podcasts like Rogan’s to do well, not only because of listener loyalty but also because they were the only game in town. If you wanted to listen to a funny, comedian-centered chat show, or a meaty, lengthy interview, Rogan was right there with plenty of content to chew on.

Rogan was fast, prolific, and consistent, putting out long weekly, then biweekly, then multi-weekly episodes like clockwork. These initially featured long interviews with other comedians like Dane Cook or Bill Burr, but it didn’t take long for other high-profile interviews to sneak in: Kevin Smith, Anthony Bourdain, Melissa Etheridge. Rogan’s wide-open approach to guests was effective but unwieldy: By 2013, he was chatting with scientist Neil deGrasse Tyson, but also courting fringe conspiracy theories of every variety, ranging from his long-held belief that the moon landing was faked to the existence of DMT elves.

Rogan’s podcast debut coincided with the introduction of Google’s Android into the smartphone space, a development that exacerbated the rise not only of modern social media but also of the podcast as a ubiquitous smartphone presence. It also coincided with the increasing obsolescence of traditional media; between 2006 and 2016, awareness of podcasting doubled while trust in media on the whole plummeted, reaching new lows year over year.

 Stacy Revere/Getty Images

Rogan’s status as a UFC commentator (here with Conor McGregor, right) solidifies his bona fides in masculine spaces.

Even more crucial to Rogan’s success was YouTube: Rogan filmed and released his podcast episodes on YouTube as well, giving him access to two growing online ecosystems. These were increasingly united not only by a common DIY ethos but a sense that influence and authority, if not expertise, could be earned through nontraditional pathways.

For Rogan, that authority took the form of embracing his masculinity and encouraging his listeners — the vast majority of whom were and are young men — to do the same. He offers “a motivational shove in the general direction of success and happiness,” a clarion call for audiences to step up and take control of their own lives that fits somewhere between a Tony Robbins seminar and Reddit’s favorite “lawyer up and hit the gym” mantra. In his bio, Rogan highlights his longstanding side gig as an MMA commentator and notes that he had a black belt in tae kwon do as a teen. It’s perhaps significant that he lists those accomplishments before his Fear Factor hosting gig — the latter might be a more recognizable achievement to the general public, but the former underscores the stamp of authentic machismo that his fans value.

But Rogan also, perhaps surprisingly, eschews toxic masculinity (even as Rogan himself eschews the whole idea of “toxic masculinity” and a potpourri of other progressive buzzwords). He urges listeners to be vulnerable, to forge close male friendships, to celebrate “male energy.” As Andrew Sullivan recently observed, “He readily admits when he’s wrong and often self-deprecates. He’s not afraid to show emotion and choke up — whether it’s over the triumph of female fighters or putting down a puppy or the death of Chadwick Boseman. … His masculinity is unforced, funny and real.”

While a desire to uphold men and masculinity might make Rogan more relatable to his audiences, however, it also leaves them more receptive to Rogan’s wide-ranging social and political views — and the extremist views of some of the guests he platforms. For example: Even after the 2018 collapse of his Infowars empire, right-wing extremist conspiracist Alex Jones continued to reach a massive mainstream audience as a guest on Rogan’s show, thanks to a 2019 appearance that was downloaded more than 30 million times before its eventual Spotify removal. Rogan’s most recent episode with recurring guest and right-wing philosopher Jordan Peterson was over four hours long; excerpts of it have already been viewed millions of times on YouTube alone. That’s a lot of potential new eyes and ears turned toward a man whose reactionary politics have won him a huge following among white supremacists.

Rogan has also increasingly faced charges of being an alt-right gateway drug, despite and perhaps even because of his progressive political endorsements — and research into YouTube’s ballooning far-right sphere of influence has borne out some of that alarm. Though Rogan has never overtly courted the internet “manosphere,” with its long tail of toxicity and function as an introduction into harder extremism, many of his fans are drawn to his podcast for the same reasons they’re drawn to the manosphere: Rogan’s permissive, understanding approach to being a man in a world increasingly critical of masculinity.

None of this context fully explains how Rogan arrived at the “injecting himself with dewormer” stage of Covid-19 conspiracies. But it does imply that unlike, say, a right-wing news anchor who might preach vaccine wariness while being fully vaccinated themselves, Rogan’s mistrust of authority and anti-establishment contrarianism are more than just words. The complicated reality is that Rogan seems to genuinely dislike “woke” progressive politics and what he perceives as the hypersensitive, overly semantic identity politics of leftism, while also despising Donald Trump and everything he represents. Recognizing that the two aren’t mutually exclusive moral vectors is arguably one of Rogan’s strengths; he won’t cancel you for disagreeing with him. “I disagree with myself all the time,” he’s said.

His fans likewise see his self-deprecating openness about his own ignorance as a value rather than a flaw. And all the racist language? That, too, is a nonstarter with fans as a serious criticism of Rogan — which makes sense when you consider that one of the main ways modern racism flourishes is through a reliance on nuance that skirts the line between ironic racism and actual racism, between intent and effect. NPR critic Eric Deggans calls Rogan’s “I’m not X-ist, despite doing these many literally X-ist things” approach to these topics “bigotry denial syndrome,” which he defines as “the belief that, because you personally don’t view yourself as a bigot, you don’t believe that you can say or do something that is seriously bigoted or damaging.”

“The problem here isn’t just that Rogan may have hurt feelings or given offense,” Deggans writes. “The bigger issue is the way such jokes foster acceptance of stereotypes that are damaging and persistent. … In fact, you can argue that — by providing more palatable ways for fans to use a horrible racial slur and laughing off a joke he admitted was racist — Rogan did damage that is tougher to address than an admitted racist openly advocating white supremacy.”

Deggans is focused here on Rogan’s history of racist language usage. But he’s also pinned the slippery, bigger problem with Rogan as a public figure. Rogan is the influencer’s influencer — a new-generation media mogul whose fame is predicated less on being accurate or being professional than on being popular and relatable. Paradoxically, that allows him not only to get away with professional-level mistakes — errors that might have ended his career if he had a boss, worked in an office environment, or had anyone to hold him accountable — but also to claim ownership of those glaring mistakes as a part of his brand of relatability and honesty.

Instead of being canceled (he’s “too big to cancel”), Rogan has dragged us all in the opposite direction: He’s just respectable enough, and more than powerful enough, to have helped shift the Overton window of acceptable, respectable social views toward a messier, uglier roundtable that, sure, includes Bernie Sanders and Neil deGrasse Tyson, but also includes Alex Jones and a bunch of alt-light right-wingers. Spotify might have been the driving force that could have attempted to hold Rogan accountable for his decision to consistently platform extremists, but Spotify, battling its own set of problems in the podcast space, kowtowed to Rogan and graciously gave way.

In other words, Rogan, one of the most powerful voices in the world, now may have more freedom than ever to dictate the terms of public conversation — to decide who and what gets to be listened to, and why. As Deggans notes, that sort of influence is much harder to fight than out-and-out extremism.

It’s in that gray space that Rogan flourishes. It’s in that gray space that his listeners, exhausted by the endless polarization of sociocultural discourse, find comfort in Rogan’s ambiguities and contradictions and uncertainties. But it’s also that gray space that harbors bad actors, bad science, misinformation, and disinformation. By playing host to them all but claiming it all as fair game in the name of free speech, Rogan has taught his followers a simple but effective playbook for how to appear balanced without actually being balanced.

Whether Rogan himself believes his dedication to cultivating a moderate and open viewpoint is almost beside the point: It only takes one bad seed to yield a lot of bad apples. And for every Roganite who gravitates to his show because of his more moderate guests, there are the Roganites who come for the Elon Musks but get drawn to the Jordan Petersons and Ben Shapiros. That’s all part of Rogan’s appeal, no matter how much his fans might insist that it isn’t. And the more he teaches his followers how to weaponize that denialism, the harder it gets to pass off Rogan’s brand as that of a relatable guy who’s just royally fucking up once in a while.

Yet what if Rogan were to drop the artifice? If he were to actually admit that there are limits to the acceptable nature of the views he’s been platforming? For all Rogan’s shows of authenticity, that level of honesty seems almost unthinkable.

Rogan, and people like Peterson alongside him, have been able to stretch the Overton window because not enough of his followers and the general public are convinced that what they’re preaching is socially unacceptable discourse. But if Rogan admits that it is, then he’s turned his show into yet another moral line in the culture war sand — and another hill for his fans and far-right reactionaries to die on. If Rogan admits that amplifying abhorrent views in the name of free speech isn’t worth the trade-off, then the safe comfort zone he’s spent 12 years constructing for his audience comes crashing down.

And if Rogan admits, out loud, that the safe zone he built hides monsters, then we all have to reckon with having allowed him to build it. And to reckon, not just with Joe Rogan but with the past decade of our cultural conversation constricting itself in knots in order to establish a legitimate platform for white supremacy, white nationalism, and a bottomless cauldron of hate. For ideas that should never have been treated as legitimate to begin with.

Surely, rather than unpack that mess, it’s easier for everyone to let Joe Rogan keep Joe Roganing — for Spotify to sidestep a distasteful canceling, and for fans to continue viewing Rogan as a vanguard of moderated discourse.

The only problem is one of attrition: The more we let Rogan get away with it, the more we set ourselves up for something worse down the line — for something even more unacceptable to slowly become acceptable.

What’s more unacceptable than 24 n-words? We can barely imagine. But one thing already seems like an inevitability: The next Rogan-esque influencer who comes along may have even less pretense, and even more fans who are willing to follow him into the dark.

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