Will the Supreme Court permit EPA climate decisions to stand?

If it does, the impacts on our lives, livelihoods, liberties and living standards will be enormous

Guest opinion by Paul Driessen

The U.S. Supreme Court recently heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency. The case will determine how far EPA can extend its regulatory overreach, to control “climate changing” carbon dioxide from power plants and other facilities – by ignoring the Constitution’s “separation of powers” provisions, rewriting clear language in the Clean Air Act, and disregarding laws that require the agency to consider both the costs and benefits of its regulations and what it is regulating.

Put more bluntly, the Court will decide whether EPA may deceive the American people, by implementing regulations that have no basis in honest science and will be ruinous to our economy. It is the most important energy, economic and environmental case to come before the Court it in decades.

Suppose a used car dealership routinely rolled back speedometer mileage, deleted customer complaints from its website, posted fabricated compliments, and lied about defects and accidents, to sell more cars. Or a manufacturer misstated its sales and bottom line, failed to mention major safety violations and fines, and made false claims about new product lines, to attract investors and inflate stock prices?

Both would be indicted for fraud. Now apply the same standards to EPA, whose actions and regulations will affect far more people: virtually every family, facility, company and community in the United States. Jurors would likely rule that the agency is engaged in systematic deceit, dishonesty and fraud.

EPA Administrator Gina McCarthy insists there is “no more urgent threat to public health than climate change.” She is determined to impose President Obama’s anti-hydrocarbon agenda. “I just look at what the climate scientists tell me,” McCarthy told Senator Jeff Sessions (R-AL). Translated, she means she talks only to those who advocate climate alarmism, and ignores all contrary scientists and evidence.

In fact, thousands of scientists and studies argue that there is no empirical, observational evidence to support any of her claims. Recent NOAA and NASA temperature data confirm that global warming ended in 1997 and continues today, even as atmospheric carbon dioxide levels increase steadily, improving plant growth worldwide. Seas are rising at barely seven inches per century, and there is no evidence that recent weather events are any more frequent, intense or “dangerous” than what mankind has dealt with forever.

There is no convincing evidence that carbon dioxide emissions have replaced the powerful, complex, interrelated natural forces that have always driven climate and weather changes. No evidence supports the notion that slashing CO2 emissions and trashing our economy will “stabilize” global temperatures and climate variations, or that developing countries will stop pouring carbon dioxide into the atmosphere.

EPA brushes all this aside. The agency just assumes and asserts human causes and disastrous results, disregards any and all experts and evidence to the contrary, and ignores any and all costs imposed by its regulations.

It has also violated the Constitution, by rewriting specific Clean Air Act provisions that specify 250-ton-per-year emission limits, in sections that EPA is relying on for its climate rulemakings. To shut down coal-fired power plants, the agency illegally and arbitrarily raised the threshold to 100,000 tons of carbon dioxide per year, and ignored the fact that in 692 bills Congress never contemplated applying these sections to greenhouse gases. Unless the Supreme Court intervenes, EPA will continue rewriting the law, gradually tightening its standards to control millions of natural gas generators, refineries, factories, paper mills, shopping malls, apartment and office buildings, hospitals, schools and even large homes.

EPA and other agencies have paid out billions in taxpayer dollars to finance and hype “research” making ludicrous claims that manmade global warming is hidden in really deep ocean waters or obscured by pine tree vapors; tens of thousands of offshore wind turbines could weaken hurricanes; and climate change will cause more rapes and murders. They have used “climate disruption” claims to justify giving eco-activist groups billions of taxpayer dollars to promote alarmist climate propaganda … spending tens of billions on crony-corporatist “green energy” and “climate resilience” programs … and forcing the United States and other nations to spend hundreds of billions on worthless climate change prevention capers.

EPA’s so-called “science” is intolerable “secret science.” The agency refuses to share it with outside experts or even members of Congress and businesses impacted by its regulations. The agency claims this taxpayer-funded information is somehow “proprietary,” even though it is being used to justify onerous regulations that dictate and impair our lives, livelihoods, liberties, living standards and life spans. EPA refuses to be transparent because it wants to prevent any examination of its internal machinations.

Just as bad, EPA routinely ignores its own scientific standards, and many climate reports it relies on come straight from the UN’s Intergovernmental Panel on Climate Change. However, as the Committee For A Constructive Tomorrow observed in its amicus curiae brief to the Supreme Court in this case, the IPCC has been caught red-handed presenting student papers, activist press releases and emailed conjecture as “peer-reviewed expert reports.” It has been caught deleting graphs that clearly show its computer models were worthless, and employing junk models like the one that generated Michael Mann’s infamous “hockey stick” to support assertions that it is 95% certain that humans are causing climate change chaos.

These computer models are built on unproven alarmist assumptions, have never been “validated” and are not merely “unverifiable.” They are flat-out contradicted by real-world evidence right outside the EPA windows, making their results worthless for sound, legitimate public policy. Any yet they drive policy.

In violation of federal laws and executive orders, EPA hypothesizes, concocts or exaggerates almost every conceivable carbon “cost” – to agriculture, forestry, water resources, coastal cities, human health and disease, ecosystems and wildlife. But it completely ignores even the most obvious and enormous benefits of using fossil fuels and emitting plant-fertilizing carbon dioxide: affordable heat and electricity, jobs, transportation, better crop growth and nutrition, and improved living standards, health and welfare.

In reality, hydrocarbon and carbon dioxide benefits outweigh their alleged costs by as much as 500 to 1! That means EPA’s “climate change mitigation” rules impose costs on society that exceed even EPA’s exaggerated regulatory benefits by as much as 500 to 1. The EPA “cure” is far worse than the “disease.”

And let’s not forget that one of Ms. McCarthy’s senior advisors devising the agency’s climate change policies and regulations was none other than John Beale – the guy who bilked us taxpayers out of $1 million in salary and travel expenses for his mythical second job as a CIA agent. To suppose his fraudulent actions did not extend to his official EPA duties defies belief. And yet EPA has apparently taken no steps to reexamine Beale’s analyses or conclusions.

EPA has done all of this knowingly, deliberately, with full knowledge of the grossly deficient foundations of its pseudo-science and policies – to drive an anti-hydrocarbon agenda, without regard for the consequences that agenda will inflict on millions of Americans and billions of people worldwide.

This goes beyond mere sloppiness or incompetence. It is dishonest. It violates the law. According to standards applicable to every citizen and business in the land, it is fraudulent. By controlling the energy that powers our homes, cars, businesses and nation, EPA’s carbon and carbon dioxide policies will control and impair our economy, wipe out tens of millions of jobs, and kill thousands of people – for little or no health or environmental benefits.

The real threat to public health and welfare is not climate change. It is EPA and what this rogue agency is doing in the name of preventing climate change. If the Supreme Court allows this, by giving carte blanche authority to EPA, the battle will rage on countless other fronts, because voters are sick and tired of being lied to, manipulated, defrauded, and forced to pay outrageous prices for oppressive regulations.

Democrats say they plan to use climate change to attack Republicans in 2014. I say, Bring it on!

Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of Eco-Imperialism: Green power – Black death.

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128 thoughts on “Will the Supreme Court permit EPA climate decisions to stand?

  1. Well said – but one minor nit: “global warming ended in 1997 and continues today” should read “global warming ended in 1997 and the halt in it continues today”.

    Since Congress appears unable to put the EPA in its place, if the Supreme Court surrenders to McCarthy & Co. (parallels to Joe, anyone?) the states will have to act. I would recommend that in every red state and every coal state at least, each state government declare the EPA to be a rogue agency and a criminal enterprise, and that their state is no longer subject to its jurisdiction. And then let der Fuehrer and Himmler (Holder) and Eichmann (Holdren) huff and puff and jackass bray all they want to.

  2. [Utility Air Regulatory Group v. Environmental Protection Agency] is the most important energy, economic and environmental case to come before the Court it in decades.

    Yes, but it wasn’t argued that way?
    Argument recap: Five — the number that counts

    Overall, the Court seemed largely to be awaiting the turn of the U.S. Solicitor General at the lectern. While he drew obvious and continuing support from the Court’s more liberal Justices, he was challenged at times aggressively by Justice Scalia. But it was Justice Alito who used the most accusing descriptions of how the EPA had interpreted its power to regulate greenhouse gases, saying at one point that, in the entire history of environmental regulation, no agency had given itself the authority to simply edit the explicit language that Congress had written into the law.

    SCOTUSBlog Summary page: http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/?wpmp_switcher=desktop

    Audio recording: http://www.oyez.org/cases/2010-2019/2013/2013_12_1146

  3. Expect CJ-SCOTUS, John Roberts, to use “The Nick Stokes Defense” on this one.

    It worked before.

  4. I’m missing something here. How does raising the threshold from 250 tons per year to 100,000 tons per year a “cutback”? How are these things measured?

  5. The title of this post is misleading. I was hoping it would give some kind of insight into case law or precedents that would elucidate how the Supreme Court would deal with this…especially in light of the fact that it has already given the EPA the right to classify CO2 as a pollutant.

    Instead we get the usual recitation of EPA abuses.

    Don’t get me wrong…I am having a hard time these days figuring out what is the difference between the EPA and a dictatorship. They need to be cut off and fast.

    Perhaps a new title would be appropriate…one that doesn’t make the potential reader assume that this post contains insights into how the Supreme Court might rule.

  6. “Will the Supreme Court permit EPA climate decisions to stand?”

    Stand in front of the 9 members of the Supreme Court. Wait a few seconds and then point out to each of them that they just exhaled CO2 into the atmosphere. Their exhaled breath may have contained as much as 10 times the about 400 parts per million that is in the atmosphere now. All of the plant-life on the planet that use photosynthesis “breathes in” CO2.

    CO2 in the atmosphere can not be considered a pollutant?

  7. The Solicitor General told the Court that human beings are net neutral w/r/t CO2. Is this correct?

  8. Unfortunately, Lyle Denniston at SCOTUSblog was doing a bit of a pre-celabratory Snoopy dance on the assumption the court will uphold the EPA’s rule. He thinks Kennedy will likely side with the liberals. On some issues, such as free speech, Kennedy is great, but on others, he seems to be willing to toss aside logic and the law in order to achieve political outcomes. We can only hop[e he comes to his senses and realizes what an open-ended tool he’s handing to executive agencies if he allows them to rewrite statutes. That would be Chevron deference raised to the nth power.

  9. For a monumental case giving EPA practically unlimited power to rewrite laws to fit its policy, the arguments seemed rather unfocused:

    From about the middle of the summary blog:
    “Reading the briefs,” [Justice Kennedy] commented to [US Sol. General] Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

    That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

  10. The current SCOTUS has decided that an individual’s assets may be frozen when accused of a crime involving forfeiture of assets, if convicted, thus subverting an individual’s right, under the 6th Amendment, to effective counsel during trial. Just last week, this court found that police can conduct a warrantless search of premises if anyone on site gives them permission to enter, even if the homeowner has stated previously that the police may not enter.
    Such decisions do not inspire confidence in this court’s view of the power of individuals vis a vis the state.

  11. “The title of this post is misleading. I was hoping it would give some kind of insight into case law or precedents that would elucidate how the Supreme Court would deal with this…especially in light of the fact that it has already given the EPA the right to classify CO2 as a pollutant.

    Instead we get the usual recitation of EPA abuses.”

    My thoughts exactly. Valuable post, but should be called what it is. I’d have been much more interested in a reasoned analysis as to how this might ultimately be adjudicated. I’ve read that it looks close, with one Justice (forget which) possibly determining which way it goes.

  12. MJW says:
    March 3, 2014 at 1:12 pm
    Unfortunately, Lyle Denniston at SCOTUSblog was doing a bit of a pre-celabratory Snoopy dance on the assumption the court will uphold the EPA’s rule. He thinks Kennedy will likely side with the liberals. On some issues, such as free speech, Kennedy is great, but on others, he seems to be willing to toss aside logic and the law in order to achieve political outcomes. We can only hop[e he comes to his senses and realizes what an open-ended tool he’s handing to executive agencies if he allows them to rewrite statutes. That would be Chevron deference raised to the nth power.

    On issue after issue, there is no doubt how the liberals on the bench will vote. We know how they will vote on this, no question. Politics is their main concern and they will employ any logic to ge the pre-determined decision they desire.

  13. My thoughts exactly. Valuable post, but should be called what it is. I’d have been much more interested in a reasoned analysis as to how this might ultimately be adjudicated. I’ve read that it looks close, with one Justice (forget which) possibly determining which way it goes.
    If one judge determines the outcome, it’s virtually always Kennedy. As it is in this case.
    See Stephen Rasey comment for a link to the SCOTUSblog (quite discouraging) analysis of the oral argument.

  14. I am sympathetic to your argument, but I think that the wording of the law gives EPA the right to decide on its own what weight to give to various sources of evidence, who counts as a scientist, what counts as science, and so forth. Do you have links to the briefs?

  15. Short answer; Yes.
    The political appointees of the Supreme Court have already made it clear ideology trumps law.
    Having abandoned law, they will rule for the lawless activity of their comrades.
    I would like to be wrong.
    I doubt this court will prove me so.
    These are the agents of the kleptocracy, civilization will fall if they have their way.
    For without rule of law, we have no social contract.

  16. As a lawyer who has read some of the briefs in the Massachusetts V. EPA case, I would say that the Massachusetts v. EPA case was poorly argued by the Bush Administration. It simply argued that the CO2 regulations proposed by the states would be so small that they would be irrelevant. (The states lacked standing) However, the Bush Administration assumed the viability of Hansenite science, which I think was a very serious tactical error. If the obvious defects of Hansenite science were adequately explained, I think there is a chance that Kennedy could be swung over to reach an opposite conclusion.

    JD

  17. Without looking at the actual briefs, I can share from experience that appellate courts are generally quite opposed to explicit deviations from its congressional authority. Congress enacts the EPA Act and the agency lives within those rules, often interpreting the grey areas for their own use. If the EPA is granted authority by the courts to keeps its interpretation, its up to Congress to subsequently amend that authority more explicitly to Congressional intent – as opposed to agency interpretation.
    Chevron deference as previously referred already gives agency actions huge power to avoid regular court systems until the agency action runs its course, and they often abuse that power by pushing through decisions that have no basis in reality and are ultimately overturned.
    So unless the EPA explicitly does not have power under the current Act to impose restrictions on the use of CO2, then I expect they will win. If as suggested here, SCOTUS upholds decisions for agencies to unilaterally rewrite its own laws then that would be a problem. Every other agency will soon follow suit; all hell breaks loose.
    I suspect that its somewhere in the middle. A district appellate court would not uphold a decision to give an agency that level of power I’m sure, so the fact that SCOTUS is reviewing implies that EPA Act needs revisions to limit agency interpretation.

  18. Thanks to Stephen Rasey for the SCOTUSblog link. From there, I eventually got to this, the respondent’s consolidated brief:

    http://sblog.s3.amazonaws.com/wp-content/uploads/2014/01/12-1146bsUnitedStates.pdf

    There are lots of other briefs, including “amici curiae” briefs. My opinion is that the law is bad, but I don’t see how SCOTUS can rule the way I would like it to rule. I think that it is up to Congress to rewrite the law. I hope I am wrong.

  19. The appropriate response is not for SCOTUS to opine on a poorly worded CCA, now stretched beyond recognition. Although they may. And would have, I think, sufficient grounds in this specific case turning on narrow and precise issues of statutory interpretation.

    It is for Congress to legislate by vote, rather than the EPA to legislate by fiat. This is an election year. And something can be done about the Senate. And then something more could be done about executive over-reach.

  20. Should have read blog cited by Rasey before commenting. Appears that Kennedy still supports the Massachusetts v. EPA case notwithstanding his skeptical comment. He will be hard to win over. Still believe that Massachusetts v. EPA was poorly argued, but it appears that the mistake may linger on.

    JD

  21. Just over 70 years ago, a notorious German persuaded his parliament to pass an ‘Enabling Act’ to “save the country”.

    The EPA today appears to have assumed the same role.

    In both instances, not enough people demanded to know the answer to the question: “Save us from what?”

    In both instances, the results were/will be the same.

  22. “Quinn the Eskimo says:
    March 3, 2014 at 1:12 pm
    The Solicitor General told the Court that human beings are net neutral w/r/t CO2. Is this correct?”

    We CAN’T be net neutral. We animals breathe O2 and breathe out CO2, making us net PRODUCERS of CO2. With only plants, and no animals in the world, there would be a skewing in the O2-CO2 balance towards more O2, less CO2.

  23. One of the references in the SCOTUSblog summary was a Feb. 10 Symposium:
    Symposium: Constitutional first principles and the greenhouse gas cases By Howard Nielson. It ends with this caution:

    But even those who support the EPA’s policy objectives should pause to consider the potential price of an executive empowered not only to enact rules and enforce the law within the bounds set by Congress, but to disregard even explicit statutory limits in pursuit of its own policy objectives. For as Justice Jackson memorably put it long ago, despite “all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” {emphasis mine}

  24. JD Ohio: If the obvious defects of Hansenite science were adequately explained, I think there is a chance that Kennedy could be swung over to reach an opposite conclusion.

    Are the justices of the Supreme Court really qualified to overrule the scientific judgment of the EPA scientists? I think that the EPA is wrong in this case, but I do not see how that justifies SCOTUS in overruling EPA. Don’t they have to find fault with the EPA procedure, or find a conflict between the law and other law? I really can’t see the justices signing on to an opinion that says, basically, “We have read on blogs (or in briefs, in a couple Science review articles, whatever) that the evidence is not as solid as EPA claims, etc.”

  25. Stephen Rasey, citing Justice Jackson: despite “all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

    Is there any evidence that EPA violated the law in creating its ruling? What’s the wording of the section of the law that they violated, and what of their actions were in violation?

  26. “Don’t they have to find fault with the EPA procedure, or find a conflict between the law and other law?”

    That is the point. The Clean Air Act never put in place any provisions for treating CO2 as a pollutant.

  27. alan mcintire

    yes. co2 tax is a tax on human existence ie the air u breathe out. It basically assumes your existence is a ‘pollutant’. So for as long as you live you are a criminal who has to pay.
    a monopolists dream -taxing the air u breathe

    those who run for fun should pay to do so as they produce more co2 etc. Sounds unbelievable? currently those who want ‘cooked food’ have to pay co2 taxes thro their bills. Those in the usa winter who want to stay alive thro heating have to pay co2 taxes to do so. Basically your existence is a crime against the eco utopian analysis of climate mechanics. The eco utopians want to deindustrialise and they mean to do it thro increasing taxes on anything to do with co2 ie human existence. They are anti human

  28. The Supreme Court ruled before that the EPA can regulate CO2 under the law known as the Clean Air Act if it is a pollutant. It did not rule that CO2 actually is a pollutant.
    Unless it has been repealed, there is also a law that says the EPA must base it’s regulations on actual, sound science. “Secret science” doesn’t fill the bill.

  29. With all of this talk about what the EPA is attempting to do in the courts in regulating CO2, primarily coal fired utility plants, I think there is a ray of hope.

    A few months ago I took up the study of Quantum Mechanics which lead me to what I believe to be some hope for future energy production. Back in 1989 two scientist by the names of Stanley Pons and Martin Fleischmann made a press announcement that was coined as Cold Fusion. Today more commonly referred to as Low Energy Nuclear Reaction (LENR).

    Pons and Fleischmann were ridiculed by the science community and made a laughing stock that ended there careers. However, a number of scientist continues the work quietly and things are beginning to blossom in this field. In Italy, we have Andrea Rossi with the Energy Catalyzer (E-Cat) and Robert Godes, Brillouin Energy Corporation here in the US.
    http://www.brillouinenergy.com

    BEC is developing breakthrough technology that produces large amounts of commercially usable heat energy at a very low cost. In light of this the utility companies have great interest. If the EPA shuts them down, they can retrofit those coal fired plants with this new technology.

    All in all, what the EPA is doing to control CO2 emissions maybe a moot point. In the end, a big waste of taxpayers money.

    I just love what my dictionary had to say about the word moot, (whether the temperature rise was mainly due to the greenhouse effect was a moot point, having no practical significance).

  30. Excellent essay.

    EPA needs a major overhaul, especially those involved in the rule making and grant distribution.

  31. @Matthew R Marler at 2:05 pm
    Is there any evidence that EPA violated the law in creating its ruling?
    It did. It admits that it did. It’s defense is that it was forced to as to prevent “absurdities.”

    From the SCOTUSblog: Argument preview: Curbing greenhouse gases
    Here is that question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources.” It should be noted that the question was submitted by the Sol. General, except that SCOTUS changed “correctly” to “permissibly”.

    Under the law, the permitting regime for Title I emitting sources would apply to any facility that emitted at least 100 tons and up to 250 tons of pollution a year, depending upon the nature of its operations. Under the Title V permitting regime, the threshold was emission of 100 tons a year.

    If EPA followed those requirement to the letter, it found, it would have to spread out its permitting program to cover not just 15,000 facilities, but 6.1 million, costing it $22.5 billion for paperwork, plus billions in compliance costs for covered facilities. Such a regulatory regime, it found, might even reach sources as small and localized as apartment projects, colleges, and hospitals.

    Reaching that far, EPA decided, would be ”absurd,” and definitely not what Congress had intended. The EPA, of course, could not change the language of the Clean Air Act; that is Congress’s job. So, claiming administrative necessity, the EPA in June 2010 came up with what is known as the “tailoring rule.”

    It interpreted the threshold for applying the permitting regime to plants emitting more than 75,000 or 100,000 tons per year, with a promise to modify the threshold from time to time, as the need arose. It said it was not abandoning the low thresholds Congress had specified, and might some day push the permitting regime down to those levels.

  32. Matthew R Marler says:
    March 3, 2014 at 2:05 pm

    =============

    A more pertinent question would be; What gives the EPA the authority to regulate CO2?

  33. I think I know how the Utility Air case will be decided: BOTH sides will “lose”.

    On paper, the EPA will lose. SCOTUS will rule that it is not permissible for EPA to adopt a “tailoring rule” even when administratively necessary to prevent absurdities.

    On paper, the plaintiffs win. In reality everyone loses because the EPA will still regulate GHG’s but under the absurd 100 ton threshold. Majority Opinion to be written by Justice Roberts, who has previously shown that the government has no limit to its power through taxation.

  34. Just some quick thoughts (not intended to be relied upon without independent verification):

    1. In the current case before SCOTUS (Supreme Court of the United States): The Question Presented was limited to: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases. UTILITY AIR REGULATORY GROUP V. EPA, 12-1146 (argued, 2014), (decision below: 684 F.3d 102).

    2. {From Syllabus of Massachusetts v. EPA (2007)}

    “Held: *** The Court attaches considerable significance to EPA’s espoused belief that global climate change must be addressed. Pp. 21–23.“ [from holding, Syllabus at 1. (d)] Massachusetts v. EPA, 549 U.S. 497, 4 (2007).

    Comment: Thus, if this belief is shown by current best science to be erroneous, court would logically consider THAT significant in ruling against EPA.

    3. “… EPA action on its formation of a “judgment,” that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” [C.A.A. (Clean Air Act)] §7601(a)(1).” Id. at 5.

    “The statutory question is whether sufficient information exists for it to make an endangerment finding.” Id.

    Comment: This is the crux of the matter: whether now, after CO2 UP – WARMING STOPPED (and given other best atmospheric CO2 science) human CO2 emissions can NOW legally (i.e., per their authority under the Clean Air Act) be judged by the EPA to be “reasonably be anticipated to endanger public health or welfare.” If such a judgment by the EPA is so speculative as to be arbitrary and capricious, then the EPA’s regulation is an ultra vires act and, thus, illegal.

    Notes:

    (1) TAKE HEART! No matter how SCOTUS rules, Congress can amend the Clean Air Act at any time to specifically prohibit such anti-scientific regulations – it isn’t bound by former Congresses.

    (2) Massachusetts v. EPA has lots of dicta within the decision which is not directly on point (that is, not about the issue being decided in that case: standing) and which will be given weight in the case argued in 2014. The holding, however, went only to standing, i.e., whether the Fed. courts have jurisdiction over this case when the State of Mass. is the Petitioner. Thus, as Justice Anthony Kennedy said (per WUWT commenter above), there is no precedent* (i.e., no case law) set by Mass. v. EPA (or any other case) which gives the EPA authority to say that AGW is: A. a threat; or B. a threat which their regulations can reasonably be expected to prevent.

    *Even if there were binding precedent, and even though this is not often done, the Supreme Court of the United States can overrule its prior decisions where the underlying facts or state of knowledge have changed significantly. It has been done.

    My guess about how SCOTUS will decide? HA, HA, HA, HA, HAAAA.
    Given the state of the best science re: AGW and, even more, the clear lack of statutory authority (under Clean Air Act) for the auto-emissions rule, I’d say EPA LOSES.

    However…. I also guessed that, given the CLEAR legal case against Obamacare, that Government Medicine would also have lost….. That Roberts is an unpredictable fellow… like the climate of the earth… like the weather in 3 weeks… . Hm. Shrug.

    ISN’T LIFE GRAND! #(:))

  35. “… clear lack of authority for the auto stationary source-emissions rule… .”

    {and, given the best science, for the auto-emissions rule, too — but, that question is apparently not going to be addressed at this time by SCOTUS}

  36. With apologies to Robert Duval / Apocalypse Now: I love a good rant in the afternoon. It smells like victory.

    Regardless of what the SCOTUS does on this, the game is now on at the state level. The Idaho House introduced a resolution last month nullifying all EPA edicts and authority in Idaho. They will not be the only western or southern state to do so.

    http://blogs.idahostatesman.com/house-panel-introduces-bill-to-nullify-epa/

    We also have calls for a Convention of the States to Propose Amendments to the US Constitution making their way thru the legislatures of over 30 states that I know of. Alaska is just one.

    http://www.legis.state.ak.us/basis/get_bill.asp?session=28&bill=HJR022

    Finally, the ability to act lawlessly does not reside exclusively with this regime. If they can ignore everything, so can everyone else.

    The Laws of Physics also apply the political world. An action will get a reaction. But since it is a non-linear system, that reaction is not necessarily opposite in direction or equal in magnitude. And these clowns have pushed a lot over the last few years. Cheers -

  37. This issue is much bigger than AGW or climate science. The question before the court is if the executive can rewrite the laws approved by the legislature. SCOTUS must find in favor of the UARG. Any other decision would gut the separation of powers defined by the Constitution. EPA must regulate as the CAA specifies or not regulate at all.

    My guess is that this will force the Congress to remove the ability to regulate CO2 under the CAA.

  38. It’s been said that in recent history (since WWII), especially since the ’70s, SCOTUS spends more time deciding how to justify the acts of the Legislative Branch then they do acting as a co-equal branch of Government which helps decide the course our nation steers. There is much to this argument; witness the atrocious decision in Kelo v. City of New London, or the Roberts written decision regarding the Affordable Care Act (Obamacare).

    However, some things to consider: Environmental law is littered with decisions. Since the ’70s, perhaps even more than 1st Amendment jurisprudence. Yet there is no precedent for what the EPA has done which the Solicitor General can cite, and it was Justice Kennedy (who since the retirement of Associate Justice Sandra Day O’Connor, has appeared to have taken the position as Swing Vote on the bench) who pointed this out.

    The Court has been very deferential to the Legislature. I believe the most powerful argument has been that the EPA has derogated to themselves powers they do not have, usurping the power to Legislate. Furthermore, these regulations in many cases take the appearance of taxation, from a certain perspective (fines for operating are a tax for not being able to meet a certain arbitrary criteria set not by Congress, but by the EPA. If the fines meet the test for being a “tax”—recall the Roberts decision, which stated that what those who passed Obamacare had been denying: that the penalties were “Taxes”. Though they’re still referred to as “fines”, they are collected by the IRS, and the Roberts Court declared they were a tax, and Congress, in the first Article of the Constitution, is granted the power to tax—then the Court may indeed be moved to act against the EPA, as these would be taxes which did NOT originate in the Legislature, specifically in the House of Representatives.

    There is no real precedent for this action on the part of the EPA. Certainly the Constitution is clear that the Executive Branch may not simply levy taxation. So some justification would have to be created.

    The decision clearly hinges on whether or not the Court decides that Congress intended to allow the EPA the power to update and re-write standards, and what limitations, if any, were placed on that power. For example, the argument may be made by the government that the changes were based on scientific research and reflect a better understanding of the issues which were the basis of creating the EPA in the first place, and as such do not constitute a change to what Congress intended, but a refinement of the charter they received when the agency was created. In fact, I expect that argument to be made, if/as/when it’s required. The argument has been made that they’re rogue; they’ll try to torture logic to prove that’s not so.

    The Left-leaning justices may well wish to support left causes; but they understand too well the weapon they would be handing to whichever party controlled the White House—which might not be people friendly to their liberal causes some day—should they decide to hand that carte blanche to the EPA.

    I expect them to try to find some middle way which allows the EPA’s current policies to stand with a justification that goes something like: because Congress’ guidance, issued so long ago when the EPA was first created, isn’t adequate in our modern age with decades of discoveries behind us about the very things the EPA was created to deal with, and time and discovery have, in effect, created latitude for the EPA to act where previously, there wasn’t information enough to do so, they EPA has, understandably, had to refine and change regulations to meet their mission.

    To put that into some kind of context, consider the FCC regulating the electromagnetic spectrum usage in the US. Go back to the 1950s, and they weren’t regulating frequencies in the X/ka bands, because no one had equipment to use those bands yet. But as microwave towers went up across the US, and Commercial Satellites went into use, higher and higher frequencies had to be regulated. That the FCC would regulate those like lower frequencies was a natural expansion of existing power.

    Not that I believe most of the EPAs regulatory excursions are as smooth and logical as my example, nor those of many other government bureaus; mission creep is a very real phenomenon. But certainly their mission creep at EPA has been a steady, incremental thing. Though changes have certainly been much bolder under successive presidents as each Administration seems to play Can-you-top-this with the last, it’s not like they got where they are overnight. People have been complaining about EPA and government overreach for decades; until now, as far as I can recall, mostly they’d been those evil “corporations” and got little sympathy. Until the predations of the EPA got so bad that the costs the corporations passed on to consumers got painful enough. Some folks have been fighting this fight for decades…where was everyone else then? But I digress…

    Expect a decision crafted to put the EPA on notice that they do not have carte blanche; to continue the precedence of being deferential to Congress; to inform all parties that Congress is free to modify the EPA’s charter and indeed is responsible to do so; and to wash their hands of things without altering status quo too much: without giving whomever gains the White House next too sweeping a power—because they know only too well what may happen if a group of, say, far-right-leaning Conservatives gets control next—and without making anyone very happy about how it all worked out, no matter which side they’re on.

    Further than that, my crystal ball don’t go.

    I’d like to think they’ll go completely against the Administration, which would the the right thing to do. But I’m not holding my breath.

  39. Wouldn’t a better question be: where the heck does the Constitution authorize an ‘Environmental Protection Agency’ in the first place?

  40. Hey, GERAN!

    Good to see you, ol’ excitable buddy ol’ pal, you. #(;))

    How have you been?

    Janice

    *****************
    @ P@t — Sorry we were at contre temps last time we passed, port to port… . Hope you are enjoying a peaceful evening on your lovely boat. J.

  41. Oops, better (ahem) re-word that…

    Hey, G-e-r-a-n! How are you doing, ol’ excitable buddy ol’ pal, you?

    Janice

    *********************************
    @ P@t — Sorry we were at contre temps the last time we passed … port to port (or rum to Coke… — NOT K–ch (ouch!)) …. . Hope you are enjoying a gently peaceful evening of light airs and calm seas on your stalwart floating home. J.

    [The mods do not want to see Janice zigzagging ANY boat rumming to port, Coke, or starboard, in clam seas nor contra temps. Mod]

    • @Janice Moore (risking the wrath of Mod):

      Under the weather (not water) and 5 inches of snow, contemplating SCOTUS impacts on EPA operations, and my inevitable return to work in the am..! Been a trying month or two…

      7;->

  42. Oh, Mod (smile, smile, smile). You are sooo punny.
    #(:))

    I will try to be more tackful.

    ha, ha, ha, ha, haaaaaa

  43. “The Supreme Court ruled before that the EPA can regulate CO2 under the law known as the Clean Air Act if it is a pollutant. It did not rule that CO2 actually is a pollutant.
    Unless it has been repealed, there is also a law that says the EPA must base it’s regulations on actual, sound science. “Secret science” doesn’t fill the bill.”

    Thanks, this is an important fine point. However…they have already identified it as a pollutant based on their preferred science. So it IS a pollutant under the law. I have my doubts that the Supreme Court will get involved in the science.

    This is the natural evolution of government agencies. They gather power unto themselves and eventually a corrupt executive branch decides to use this to his benefit.

    We are screwed.

  44. @ MarkG says:
    March 3, 2014 at 5:04 pm

    “Wouldn’t a better question be: where the heck does the Constitution authorize an ‘Environmental Protection Agency’ in the first place?”

    At the end of Article 1, Section 8: Congress has the power “To make all laws which shall be necessary and proper for carrying into Execution” i.e., the duty of the Executive branch to manage, “the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or Department or Officer thereof.” No where does it say Congress must create “departments” but it’s assumed there will be departments; of the Navy and an Army, if created—none existed at the time, and standing armies were anathema to the Founders—in the text of the Constitution itself.

    Article 2, Section 2, second paragraph, the President “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties…” The Advice and Consent clause goes on about treaties, appointing ambassadors, etc., and near the end, “but the Congress may by Law vvest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

    Again, departments there will be. Congress gets to decide how they want to play the role of Advice and Consent for much of it, and now, by tradition and dint of many years of precedent, big department heads, like Cabinet members or big enough agency heads, must be approved by Senate, while more minor appointments, like the President’s Chief of Staff, are his alone, and under, under, under assistant to the assistant secretary’s assistant are appointed by members of the various departments and no one notices.

    Creating a new Department…history: Congress passed a law “organizing a department of energy” and Carter signed it into law. Essentially, he was given a new task to execute.

    What is at question here is whether or not the EPA has overstepped its mission, and infringed on the powers delegated in Article 1 of the Constitution to the Legislature. As the EPA is an agency of the Executive, that’s why the separation of powers argument.

  45. Stephen Rasey says:
    March 3, 2014 at 1:15 pm

    Proud Skeptic says:
    March 3, 2014 at 6:47 pm

    While Justice Kennedy’s questions of the Solicitor General give me a little hope, it is only a little. This is because the standard of review for administrative rule-making at the Federal level – the “substantial evidence” rule – is ABYSMALLY inadequate, abysmally low. Congress needs to do something about that, because EPA can act like the blind squirrel that finds the acorn, and that would, in the Supreme Court’s opinion, be enough to sustain it. Which is terrible, of course, but courts have never wanted to get into science. Us lawyers, unfortunately, aren’t generally well-educated enough to engage in the kind of evaluation of the science of climate change that we see here at this website. And Anthony, I thank you with enthusiasm for the excellent science education your website provides on an ongoing basis to a scientific nincompoop like myself.

  46. I am waiting for the same standards the apply to the right be applied to the left. A quote I believe heard attribute to Richard Nixon it true today as much as it was then. “Why is it only illegal when a Republican does it?” Why when Cheney alleged had oil company’s help [write] energy polices was it so “wrong” and yet when environment groups help write environment polices it so “right”? As if one group has an evil agenda and the other doesn’t. Yet history shows the left is malevolent. I fear I will be dead and gone and these question will go unanswered. I also fear by then the left will have enslaves us all.

  47. Dear Pat Dolan,

    I’m so sorry to hear that you’ve been ill. I hope that soon, VERY soon, you will be operating at 100% and feeling like your old self again (and posting more often — you are a wonderful creative writer). Do take care. And remember, at the lowest ebb, the tide is about to turn… .

    With concern and best wishes for a better NEXT twelve months or so,

    Janice

    {thanks for responding}

  48. A slight diversion, but hopefully relevant.

    As a resident of a Westminster(ish) parliamentary system, I cannot understand how an agency such as the EPA can make binding regulations without any reference to the Legislature. Under Westminster, all proposed regulations must go through Parliament. In Australia, they are required to be tabled for 30 sitting days (in Federal Parliament), and may be disallowed on a motion by a Member. Further, there is a standing Senate Committee that examines all proposed regulations and reports on them prior to the expiry of the tabling period. Similar provisions apply to State governments.

    The rationale is that the Parliament cannot delegate its law-making power, and there have been many court cases about it. As someone alluded to above, it is closely related to taxation powers, and there have been many cases of agencies trying to impose what are effectively taxes, which they are constitutionally prohibited from doing (although they can impose fines, which are disallowable anyway).

    How does the US Constitution enable the legislature to delegate its lawmaking power to unelected bodies?

  49. Meanwhile the EPA has already dropped the next shoe. The latest proposed rules will dramatically reduce the sulfur level in gasoline which is currently 30 parts/million to 10 ppm by 2017 . Typically the EPA claims the cost is nil (1 cent/gal) and this will cure all known diseases.
    On the other hand the American Petroleum Institute claims that the regulation will increase the cost of fuel by 6 to 9 cents/gal and require significant investment driving more of the small refiners out of business as happened with the former low sulfur diesel mandate because they cannot afford the large investment. Wonder why diesel fuel costs more than gasoline? You can thank the EPA for that as it lowered the allowable sulfur level in diesel. It is not clear that technology exist to achieve the proposed sulfur level in gasoline according the article. Unfortunately such facts have not deterred the EPA before, think mandated cellulosic ethanol.
    Note the included Reuter’s photo shows the mandatory smoke being emitted from a stack in San Pedro, California using clever photography. Do you think California would allow such smoke emission?
    If not now, when will the Supreme Court save us from draconian rules?

    “The EPA claimed the cost to consumers would be less than a penny per gallon of gas; the EPA projects the rules will raise the average cost of buying a vehicle by $72 in 2025.”

    “But the American Petroleum Institute pointed to studies it has commissioned estimating that the limits would actually add 6 cents to 9 cents a gallon to refiners’ manufacturing costs while requiring $10 billion in capital costs. American Fuel and Petrochemical Manufacturers, a trade group, called it “the most recent example of the agency’s propensity for illogical and counterproductive rulemaking.”

    Who do you believe?

    “This rule is all pain and no gain,” said House Energy and Commerce Committee Chairman Fred Upton, R-Mich. “This winter’s cold snap underscores just how vulnerable American families and businesses are to any increases in energy costs, and yet the administration is moving forward to raise prices at the pump.”

    “Under current rules, American gasoline can only contain up to 30 parts per million of sulfur. Charles Drevna, president of the American Fuel and Petrochemical Manufacturers lobbying group, says that any tightening of that requirement would be impossible for refiners to meet because of the nature of the sulfur molecules.

    http://www.foxnews.com/politics/2014/03/03/epa-will-reportedly-announce-new-sulfur-emissions-rule/

  50. Hi, Johanna,

    Until someone better-informed comes along, here’s your old sort-of-bothersome, bird-loving, singing, pal, piping up to respond to your excellent question. Without going into specific sections of the U. S. Constitution (and completely ignoring all the case law), here’s a very basic answer. The Legislature cannot abrogate its duty to write the laws, HOWEVER, Congress can write legislation with sufficient specificity such that an executive branch agency can issue rules per that legislation’s intent.

    When the Supreme Court of the U. S. looks at an administrative agency question, it will ask (among other things): 1) was the agency essentially acting:
    A. like a court (adjudicative proceeding); or
    B. like a legislative body (rulemaking)?

    If A., then the key issues will be: 1) whether due process was followed (essentially, (1) Reasonable Notice; (2) Meaningful Hearing); and 2) whether the agency properly applied the relevant sections of agency’s enabling legislation (here, that is mainly the Clean Air Act) per Congress’ intent (looking not just to the letter of the law, but to the spirit of the law).

    If B., then, there will be close scrutiny given as to whether those rules are within the scope of the authority granted to the agency by Congress. The issue of whether Congress’ enabling legislation is void on its face for vagueness (or void for ceding too much rule making/law making discretion to the agency) could also come into play.

    So, in summary, Congress can delegate some rulemaking authority, but not too much (see U. S. Fed. Administrative Law cases). The executive (a.k.a. administrative) agency does not have to consult with Congress, but must operate within that law or the agency’s actions will held to be ultra vires. Congress, not the executive, is ultimately in control. It can defund or simply abolish by legislation nearly every one of the executive agencies except those falling under the Executive’s prerogative to wage war. Re: “National security,” this is not (in my opinion) a true war power, thus, T.S.A., here in the U.S., could be abolished tomorrow by Congress. If “national security” were held to be a “war” power, justifying Executive fiat, we would be vulnerable to a Stal1n (or whatever wicked dictator you want to name).

    I hope that this is helpful to you. How has your summer gone? I hope it was full of lots of happy time in your lovely garden (with lots of fun birds) and enjoying your beautiful country “down” there.

    Take care,

    Janice

    #(:))

  51. Janice Moore says:
    March 3, 2014 at 5:44 pm
    [The mods do not want to see Janice zigzagging ANY boat rumming to port, Coke, or starboard, in clam seas nor contra temps. Mod]

    Mayday! Mayday!
    Mod Oy Vey Board!!!

  52. I do not think we can expect any justice from the US Supreme Court in relation to this matter. It is because of the US Supreme Court, in the first place, that the EPA adopted its present position to regulate CO2. As much as I hate to acknowledge this, the US Supreme Court has already made its bed on the issue of CO2.

    The only way the US will ever see a change regarding the regulation of CO2 is by politicians bringing it about. But seeing that the American people have put these politicians in office, it is now up to them to bring about their change.

  53. Matthew Marler “Are the justices of the Supreme Court really qualified to overrule the scientific judgment of the EPA scientists? I think that the EPA is wrong in this case, but I do not see how that justifies SCOTUS in overruling EPA.”

    I should mention that I am not a specialist in environmental law. However, the EPA should have to justify that something it calls a pollutant is a pollutant. It can’t just say that we deem oxygen a pollutant and will regulate oxygen. For instance, the EPA is currently attempting to rely on the IPCC reports to justify more CO2 regulation. Personally, I don’t think that is adequate.

    Additionally, courts rule on scientific evidence all of the time in personal injury lawsuits and in workers compensation matters. (For instance, did a certain chemical cause lung disease in a particular worker?) What happens with respect to scientific issues is that both sides submit their own experts. In the Massachusetts case, the States submitted their own evidence with respect to CO2, and the Bush EPA essentially laid down without challenging it. There are many holes in warmist “science,” and by not challenging them the Bush administration gave the Supreme Court the view that warmist “science” was something equivalent to DNA when used to solve crimes. Thus, I suspect that various members of the Supreme Court believed that ruling that CO2 couldn’t be regulated would have resulted in a technicality (the legal concept of standing) taking precedence over a matter of great practical importance.

    As others have pointed out, even if the Supreme Court permits extensive regulation, the Court is interpreting a statute, which can be amended.

    JD

  54. @ Mac (8:41pm) — LOL. Those you manage at the finest company in the world are so blessed that you have that fine sense of humor (you do bring it to work with you?…, heh — just keep that wadded up coat handy (to scream into)).

  55. @johanna at 7:52 pm

    From: 43. REGULATION AND THE CONSTITUTION #1, by Dr. Harrison Schmitt (former US Senator (NM), astronaut, geologist, #12 man on the Moon)

    It is now obvious that Congress got America into a real pickle when it agreed in 1933, as part of Roosevelt’s New Deal, to delegate law-making power to agencies under the control of the President. This unconstitutional and increasingly threatening situation became entrenched with the passage of the 1946 Administrative Procedures Act. APA set up the formal mechanisms for creating regulatory law outside any direct action by Congress.

    With the Administrative Procedures Act, Congress gave the Executive Branch almost complete responsibility for directly overseeing the economic burden, legality, and the constitutionality of non-legislative regulations. The legal oversight of regulatory law through the Federal Courts, and its costs were left to the people and the States, as the current challenges to healthcare law and regulations so clearly illustrate.

    Does any constitutional authority exist for Congress to transfer the power to establish regulatory law to a federal agency? The very limited answer to this question is “yes.” Clause 18 of Section 8, Article I, gives Congress the final power, “To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.”

    There is a lot of stuff written about government powers to “provide for the common defence, promote the general Welfare”. However, it seems few people remember or choose to heed that an equal phrase in the Preamble is, secure the Blessings of Liberty to ourselves and our Posterity,. Liberty has somehow taken a back seat to all other concerns.

  56. Janice and Steve, thanks for your answers. The key seems to lie in the slightly different way that the Executive is defined in the US. The Administrative Procedures Act would be unconstitutional on its face in Westminster-style democracies.

    And it all goes back to the New Deal, eh? There seems to be no end to the mischief that originated there.

    And yes Janice, the birds are out in full force, especially the parrots, which are coming in from the bush to harvest the early nuts, not to mention dropping them on my metal roof from a great height for the sheer fun of making a lot of noise!

  57. @Larry in Texas at 7:06 pm
    While Justice Kennedy’s questions of the Solicitor General give me a little hope, it is only a little.

    I’m with you. I expect a win-win for the EPA. Either they get to keep the tailoring rule, or they lose the tailoring rule, but get to regulate GHG under absurd rules that “the Supreme Court told them to do.”

    I see one hope. SCOTUS calls a rehearing to look at the broader question, as they did in Citizens United, and call the whole shebang – where EPA can define for itself what is and is not a pollutant – unconstitutional. On the plus side, Justice Roberts lead the way on Citizens United. On the minus side, he has taken a lot of heat for Citizens United and may not get a court to dive in the deep end again. On the whole, I think it is lottery-ticket odds — but on the other hand sometimes a lottery ticket it is the only way to win.

  58. Hi, Johanna,

    You are so very welcome. Oh, how wonderful it would be to see those parrots. So cool to SEE. But, not to hear, lol. I hope they tuck their heads under their wings before you need to get to sleep.

    Yes, re: Franklin Delano Roosevelt, et. al., our country came “theeeeees” close to going completely socialist in the 1930’s. There are hundreds of newspaper accounts and documents proving this (including the Venona Papers written about by Ann Coulter in her excellent book Treason). In a way, that horrid chapter in U. S. history gives me hope: we’ve been through worse. America, true, liberty-loving, Constitution-upholding, America, IS!

    Take care,

    Janice

  59. Not being a US citizen – there are some things I don’t quite understand. Here, had an agency overreached like the EPA has, the parliament through the minister would have hauled it into line long ago. Now from what I can see in the US you don’t have ministerial responsibility for departments, they are lumped under the president? Bad design, had each department been responsible to a minister of the house, you would not have this problem now.

    Anyway, a simple question, since the US House is dominated by the Republican Party, why does not the house not either amend the clean air act to disqualify carbon-dioxide, or add a provision requiring to refer such decisions back to congress. Could the congress intervene via a motion clarifying regulatory intent of the clean air act – to “Inform” the Supremes of their intent in regulating only vehicular emissions.

    One of the problems in the US system is that it has a totalitarian Administration, too much power is concentrated into a single “Will” which depending on who you get as president delivers different results. Your head of state should not be able to veto legislation that is duly passed by both houses of parliament and should absolutely not be able to write legislation or regulation. Regulation should only be enabled via an act of parliament.

    If the states were to gather a constitutional convention to change the constitution, they really should consider stripping the President of the power of veto that enables the totalitarian behaviour to exist in the administrative branch. It is Parliament that represents the people, not the President.

    (Speaking as an outsider of course)

  60. Bob, having thought a bit more about the helpful answers to my question above, it seems to come down to two things.

    One, in the US the Executive = the President. In Westminster systems, the Executive is the elected government (principally Ministers) – but it is a subset of the legislature, rather than a separate power base.

    Two, as Steven explained above, in a rush of blood to the head, the legislature handed over a bunch of legislative powers to the President – which strikes me as bizarre, but no doubt they had their reasons. So the legislature passes the primary legislation, and then the President is in charge of regulations applicable to that legislation.

    US constitutional and legal mavens, please correct me if I’ve got it wrong.

    One other question – can the legislature repeal the legislation which handed these powers to the President?

  61. johanna.
    Yes, I can see that, but it does not seem logical to give the ability to effectively legislate (regulate) to an administrative body that is not representative of the people. While the US President is democratically elected, he cannot be representative of that part of the population who voted for someone else. Never ever. The President does not represent the people therefore should not be able to legislate (regulate) at all.

    For example there is media about Obama choosing not to enforce legislation passed by the parliament. How is it that he can do that, how is it that the parliament has no power to direct the President to enforce the rules that the people’s representatives enacted? Here the responsible minister could be censured by the parliament, why can’t the US parliament likewise censure the President?

  62. Stephen Rasey: It did. It admits that it did. It’s defense is that it was forced to as to prevent “absurdities.”

    Could the court rule that the law created injudiciable conflicts in its wording, so that fair and science based regulations were impossible? That therefore the regulations can not be enforced until Congress rewrites the law to remove the absurdities? Sometimes laws are declared impermissibly vague.

  63. JD Ohio: Personally, I don’t think that is adequate.

    Me neither, but the law gives to EPA the authority to decide what is adequate, not to you or me.

    I think the best hope comes from what Steve Rasey wrote: if EPA had to break the law in order to come up with workable regulations, then the regulations are not lawful. Or, the arbitrary “big vs little” violates some “equal protection of the law” interpretation. Mr Rasey’s “win-win” comment may be correct.

  64. ”Climate changing carbon”???

    I suppose they mean Carbon dioxide, CO2, which never changed any climate apart from the political one.

  65. I predict a win for the EPA, and a big loss for the American people, and democracy.
    Hope I’m wrong.

  66. Anthony what have you done to the twitter world – they rally attack you and all you write. But alas I have the ultimate defense against the Grant Science Consensus method. I ask them for one just one real PEER REVIEWED PAPER THAT HAS ADVANCED TO THEORY . . THEY HAVE NONE AS YOU KNOW.

    Mann and the EA University will not release the based data sets, the math, the algorithms so it is impossible for anyone to replicated their work. The method is here for those that do not believe in a real science review.

    http://www.scientificpsychic.com/workbook/scientific-method.htm

  67. johanna says:
    March 4, 2014 at 1:23 am
    Bob, having thought a bit more about the helpful answers to my question above, it seems to come down to two things.

    One, in the US the Executive = the President. In Westminster systems, the Executive is the elected government (principally Ministers) – but it is a subset of the legislature, rather than a separate power base.

    Two, as Steven explained above, in a rush of blood to the head, the legislature handed over a bunch of legislative powers to the President – which strikes me as bizarre, but no doubt they had their reasons. So the legislature passes the primary legislation, and then the President is in charge of regulations applicable to that legislation.

    US constitutional and legal mavens, please correct me if I’ve got it wrong.

    One other question – can the legislature repeal the legislation which handed these powers to the President?

    Essentially, you got it. The American government is separated vertically among federal, state, and local jurisdictions. The federal government itself is split into 3 branches — executive (the President and the bureaucracies), the legislative (the U.S. Congress, itself split into two houses) and the judicial. The highest federal court in the Supreme Court of the United States. The 3 branches of the federal government are considered “separate but equal,” at least on paper, with each branch having specific duties. The Constitution of the United States also specifies many checks and balances among the three branches, grants each branch specific powers and grants those powers to one branch only.

    Yes, the Congress can pass a bill to repeal any law it wants. But to become law, that bill must be signed by the president or the Congress may override the president’s veto by a 2/3 majority vote. Congress may at any time vote to not fund any program it wants to not fund. Again, the budget is a bill, which must be passed into law and signed by the president or … (see above).

    The heads of the various federal agencies that make up the federal bureaucracy report to the President. As chief executive, the American President may decide how to administer the laws passed by Congress. The President may issue executive orders, which are directives on execution and administration of the law. These executive orders may not violate existing law, create new law, or overstep the Constitutional limits placed upon the executive branch or the federal government.

    Or at least that’s what it says on paper. In reality, we have a Imperious President who ignores the law, rewrites the law and chooses which laws to enforce and which laws to ignore. We also have a split Congress with each house controlled by different parties, making legislation difficult to pass (not necessarily a bad thing, btw) and a President who categorically will not sign a bill, any bill, which limits the power of the state.

  68. “The real threat to public health and welfare is not climate change. It is EPA and what this rogue agency is doing in the name of preventing climate change.”

    Hmm, a rogue agency trying to undermine the energy supply of the USA. Maybe KGB infiltrated?

  69. DirkH says:
    March 4, 2014 at 6:23 am
    “The real threat to public health and welfare is not climate change. It is EPA and what this rogue agency is doing in the name of preventing climate change.”

    Hmm, a rogue agency trying to undermine the energy supply of the USA. Maybe KGB infiltrated?

    KGB? No.

    Marxist/socialist radicals? Yes.

  70. I wouldn’t be concerned about the surreal court. What needs to happen is a Congress/President to scale back, defund or eliminate the nonsense.

  71. Matthew Marler ” the law gives to EPA the authority to decide what is adequate, not to you or me.”

    I believe you don’t completely understand the authority given to the EPA and the limitations that it is acting under. The EPA has to comply with legislative mandates. If you look who it has appointed and the work it turns out, it is clear that it is a politicized agency and that its “science” is second or third rate. Because of that anyone can legitimately challenge the EPA in court. (Not saying that they will win as the Supreme Court is currently constituted, but the Obama EPA’s politicization and poor science give anyone a legitimate challenge of what it does.)

    Here is the legislative mandate as quoted from the syllabus of the Massachusetts case: ” a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating the emissions of four such gases, including carbon dioxide, under §202(a)(l) of the Clean Air Act, which requires that the EPA “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class … of new motor vehicles . . . which in [the EPA Administrator’s] judgment cause[s], or contrib-utefs] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare,” 42 U. S. C. §7521(a)(l). The Act defines “air pollutant” to include “any air pollution agent . . . , including any physical, chemical . . . substance . . . emitted into . . . the ambient air.” §7602(g). EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time…”

    The EPA must make legitimate findings that CO2 endangers the public health or welfare. Relying on the IPCC, for example, is not adequate for that purpose. Additionally, in Massachusetts, the Court refused to defer to the Bush EPA. In this instance, the Court is equally authorized to refuse to defer to the Obama EPA.

    JD

  72. A court that rules in favor of Obamacare by finding that it is a “tax” can’t be trusted to rule rationally on any issue. Expect the worst, and don’t expect our completely dysfunctional Congress to ride to the rescue.

  73. Dr Abdussamatov of the Pulkovo Observatory in St Petersburg, Russia, states that total solar irradiance is the driving factor in climate change, not CO2, and that we’re in for an extended period of low solar activity.

    According Andusamatov 2014 is the year a new “LITTLE Ice Age” begins: http://iceagenow.info/2014/03/video-ice-age-2014/

  74. beng says:
    March 4, 2014 at 6:45 am
    I wouldn’t be concerned about the surreal court. What needs to happen is a Congress/President to scale back, defund or eliminate the nonsense.

    Are we getting a new president anytime soon? NOT gonna happen.

  75. johanna says: @ March 3, 2014 at 7:52 pm

    A slight diversion, but hopefully relevant….
    How does the US Constitution enable the legislature to delegate its lawmaking power to unelected bodies?
    >>>>>>>>>>>>>>>>>>>
    Actually the Constitution DOES NOT allow anyone but the legislature make laws. However the Supreme Court ‘Reinterpreted’ the Constitution After FDR’s New Deal created a lot of Bureacracy.

    Code of Federal Regulations

    Regulations are created and used by executive agencies to “clarify” the intent and scope of federal statutes, which an agency is charged with administrating or enforcing. Statutes are the actual laws passed by Congress; regulations are the “who, what, when, where, and how” involved in administrating and/or enforcing the statute.

    Modern History

    As the New Deal unfolded in the early 1930’s and Congress began to increase both the number of agencies and the scope of the authority of those agencies, the agencies began promulgating voluminous regulations. There was no mechanism for publishing, codifying, accessing or updating these regulations. There was considerable confusion about which regulations were in effect at any given time. In several 1934 Supreme Court cases involving administrative law violations, difficulty in keeping abreast of the current body of administrative law became obvious. Neither the defendants nor the government correctly understood which regulations were currently in effect. In response, Congress passed the Federal Register Act (ch. 417, 49 Stat. 500 (1935)). The Act mandates the daily publication of the Federal Register, whose purpose is to serve as a central repository of the publication of all newly adopted rules and regulations. Furthermore, publication in this periodical is constructive notice to all who may be affected by a regulation.

    Although the Federal Register was helpful in notifying the government and people of changes and additions to federal regulations, the regulations were still not codified. Congress amended the Federal Register Act in 1937 to require codification and subject access to the regulations through publication in the Code of Federal Regulations (CFR). The first CFR was published in 1939.

    The purpose of the CFR was/is to provide a system of categorization whereby all the regulations promulgated [created] by a federal department or agency on a given subject can be located and tied to the corresponding statute. The CFR does an admirable job of providing that service.

    As stated in the opening paragraph, regulations are intended to elaborate on the working details of a statute. It is beyond Congress’ ability to be experts in every field concerning which it may be called upon to legislate. The US Supreme Court has referred to the text of Congressional legislation as “the broad language of the statute”, which often times requires more detail to be properly placed into effect. These “details” are found in the “implementing regulations” promulgated by the agencies that must administrate and/or enforce a statute. Federal agencies are charged with faithful implementation and enforcement of the laws [statutes] through the regulations they promulgate. Although properly speaking, regulations are not law, rules and regulations have the full force and effect of the law.

    [Editor’s Note – It should be noted that federal statutes, as well as their associated regulations, only have force and effect upon those persons who are properly within federal jurisdiction, and has no force or effect upon anyone else. See the section, Federal Jurisdiction, within this website for more information on federal jurisdictional limitations.]

    In 1946 the Administrative Procedures Act (APA) was passed clarifying the process of making regulation, allowing for greater accessibility and participation by all citizens. The APA required the publication in the Federal Register of all proposed rule changes and a period for public comment. Proposed and final regulations that have general applicability and legal effect are required to be published in the Federal Register. The administrative regulation-making process requires that proposed regulations be published and that a comment period be provided. When the comment period closes, the agency may finalize the regulation. Once the regulation becomes final, it is published again in the Federal Register and then codified into the Code of Federal Regulations….

    http://www.originalintent.org/edu/federalreg.php

    Unfortunately most laws are a bit broad and therefore give bureaucrats a lot of latitude to ‘Make Laws’

  76. To give you an idea of how the control has passed from Congress to the Administration this is the 2013 Federal Register. The small stack on top [outlined in red] is the laws passed by Congress.
    IMAGE

  77. “It is a story that flummoxed investigators – how a highly paid climate-change expert at the Environmental Protection Agency managed to defraud the government of nearly $1m, by pretending for a decade to be an undercover CIA agent.

    John Beale, 65, is to undergo sentencing in a DC federal court on Wednesday, after pleading guilty to defrauding the government of $900,000 in salary and other benefits. Beale, who used his ruse to disappear for months at a time, has agreed to pay some $1.3m in restitution. He faces up to three years in jail.

    The scandal could rebound against the current administrator of the EPA, Gina McCarthy, and her efforts to carry out President Barack Obama’s climate-change agenda. Last week, an official investigation found that she knew of the fraud for more than a year. Other officials who worked with Beale at the agency are under investigation and in a report last week, the EPA inspector general said senior agency officials had “enabled” Beale by failing to challenge any of his stories or expense claims amounting to hundreds of thousands of dollars a year.”

    “Beale, who worked on landmark legislation of the Clean Air Act, remains well-connected in Washington, and a number of former colleagues were reluctant to comment on his case. “

  78. JD Ohio: I believe you don’t completely understand the authority given to the EPA and the limitations that it is acting under.

    That’s for sure.

    The EPA must make legitimate findings that CO2 endangers the public health or welfare. Relying on the IPCC, for example, is not adequate for that purpose.

    I think that you missed the point of my question or comment: Who other than the EPA has the legal authority to decide what is adequate? Clearly that is not you or I. I don’t think the court can rule that, despite the extensive work done by the EPA to review the science, the EPA simply did not consult enough scientists who were skeptical. If I am wrong, I am clearly missing something important in the law.

  79. more soylent green! at 6:21 am
    In reality, we have a Imperious President who ignores the law, rewrites the law and chooses which laws to enforce and which laws to ignore. We also have a split Congress with each house controlled by different parties, making legislation difficult to pass (not necessarily a bad thing, btw) and a President who categorically will not sign a bill, any bill, which limits the power of the state.

    All that is true. But some crucial facts need to be added.

    There are times, particularly 2009-2010, 1975-1978, mid 1930’s when one party controls all three branches of government. Then constitutional checks and balances disappear. Blatantly unconstitutional laws get passed and signed.

    Back in 2010, Glenn Beck nailed it when he said that the Democratic controlled Congress was purposely making themselves and future Congresses irrelevant by transferring power from the Legislative to the Executive branches and independent Agencies. Congress passed Obamacare, the Affordable Care Act, in a 2200 page bill that authorized the Sec. of HHS to create Quagmire of New Unconstitutional Obamacare Agencies (the org chart is a hoot!) and the “anti-constitutional” Independent Patient Advisory Board (IPAB),

    Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court. [cato.org]

    In the same session, Congress passed Dodd-Frank (or FrankenDodd), including “reckless delegation of authority” [nationalreview.com] to the Consumer Financial Protection Bureau (CFPB) with an unconstitutional source of funding, authority, and ability to punish.

    The system of federal court review is far too slow to be any practical impediment. Even getting into court is a trick; one must be able to show harm, not just the potential for harm. The constitutionality of the IPAB cannot challenged until its rules have harmed someone — and it hasn’t been formed yet! Even when you get to SCOTUS, they have shown little gumption to rein in unconstitutional delegation of authority since 1935 when FDR threatened to “pack the court” (see nationalreview link above).

  80. Dear Mr. Marler,

    You regularly demonstrate an admirable devotion to precision and accuracy and to the citing of verified science information on WUWT. I feel certain that you generally do not approach ANY subject matter in a slipshod manner. Thus, I think, that you (and others, here) may not realize that in the law, there is as often as much precision and accuracy (in the meaning and interpretation of statutes — in case law, mainly) as in science. For example, re: statements such as, “I don’t thing the court can…,” you would not stand for such vagueness in a science discussion. Citing the statutes and the case law (or at least a Restatement or law review article author’s analysis) that supports your belief that the EPA has essentially carte blanche authority to determine what the best science is will make your legal argument much stronger. Legal research and analysis is a much more careful topic than many scientists realize, I think… .

    My comments have certainly not been examples of thorough legal research, but, you might find my first one (which I don’t think you saw) helpful (esp. at item 3):

    http://wattsupwiththat.com/2014/03/03/will-the-supreme-court-permit-epa-climate-decisions-to-stand/#comment-1581784

    Hoping that this will spur you to delve more deeply into what the law is and to become as careful a legal scholar as you are a scientist,

    Your WUWT ally for truth,

    Janice

  81. At 11:08am:

    “… as often as…”

    “… I don’t thing think… ”

    Thank you, dear Mod… . Sorry for the bother. J.

  82. bobl at 1:39 am
    For example there is media about Obama choosing not to enforce legislation passed by the parliament. How is it that he can do that, how is it that the parliament has no power to direct the President to enforce the rules that the people’s representatives enacted? Here the responsible minister could be censured by the parliament, why can’t the US parliament likewise censure the President?

    If the President violates his oath of office or commits “high crimes and misdemeanors against the State“, the House must draw up the Articles of Impeachment (the Indictment), and be tried in the Senate. Of the many flaws in our Constitution is one where one Party controls the Presidency and either the House or the Senate. In this circumstance, a significant fraction on the Presidents own party must vote against him. It is not an impossible burden (see Nixon, 1974), but a conflict of interest none-the-less.

    Another flaw is that the Attorney General can show undue loyalty to Party and his boss. Short of impeachment, there is no remedy other than election.

    The one saving grace in the US Constitution is that theoretically, the entire House can change parties every two years instead of subject to snap elections called at the advantage of the Prime Minister within an interminable 5 year period. But elections or impeachment only work if there be a forceful and organized opposition.

    Will Rogers: “I am not a member of any organized political party. I am a Democrat.” – (early 1930s) Times change.

  83. One note of hope–remember Sackett vs. EPA, where the U.S. Supreme Court slapped down the EPA unanimously. Also, I believe the EPA has had at least 2 unanimous rulings against in front of the Supreme Court in the last 3 years. It’s possible that the Supreme Court may have recognized the signs of an out-of-control regulatory agency.

  84. Thank you for that note of encouragement to brighten a rather gray, gloomy, thread, Chris R..

  85. Gail Combs says:
    March 4, 2014 at 9:45 am

    johanna says: @ March 3, 2014 at 7:52 pm

    A slight diversion, but hopefully relevant….
    How does the US Constitution enable the legislature to delegate its lawmaking power to unelected bodies?

    >>>>>>>>>>>>>>>>>>>
    Actually the Constitution DOES NOT allow anyone but the legislature make laws. However the Supreme Court ‘Reinterpreted’ the Constitution After FDR’s New Deal created a lot of Bureacracy…..

    ===========================================================
    The Constitution is sometimes referred to as “a living document”. It’s not. It’s set in stone. It has provisions within itself to change what is chiseled, but what is chiseled is set in stone. It is called a “living document” by those who don’t like what it says. They look for ways to get around it.

    An analogy. (A little silly maybe but bear with me.)

    Lets say that soccer is a new game. Lots of people are playing it but it has no written rules. A group gets together and writes down the rules. One rule is that only the goalie can touch the ball with his hands. Fine. One team doesn’t like that rule. The coach scrutinizes the rules and notices that they never say how many goalies a team can have so adds “/goalie” to the name of each position.
    Or.
    The teams get together and choose a pool of refs. There is one team, call them “The Freedoms”, that always seems to win so most of the teams vote to select refs that hate that team.
    During a game against The Freedoms, one of the other team’s players hits the ball with his hand. The refs don’t call it. They say the rules say a player that is not the goalie can’t hit the ball with his hand but that guy only hit it with his fingers.

  86. Thanks Gail, but the explanation you provided seems to focus on process and publication, not the root of the power. If Stephen’s cite is correct, what happened in 1946 was that the legislature (for reasons that are difficult to comprehend) handed over the power to approve regulations to the Executive.

    To suggest that it was beyond the wit and capacity of the legislature to publish something like the Federal Register seems hard to believe. I would guess (based on many years of studying politics) that a short-sighted and partisan legislature saw it as a way of doubling their chances – rather than halving them – of controlling the legislative process.

  87. Janice Moore, thank you for your kind remarks.

    About this: For example, re: statements such as, “I don’t thing the court can…,” you would not stand for such vagueness in a science discussion. Citing the statutes and the case law (or at least a Restatement or law review article author’s analysis) that supports your belief that the EPA has essentially carte blanche authority to determine what the best science is will make your legal argument much stronger.

    I was hoping that someone who knew more than I would be able to prove me wrong. The farthest I got on my own was to read the briefs, that are available by following the link to SCOTUSblog, and the links that are available there. I haven’t read them all yet. So part of what I seek by posting here I got in that case: better information than what I started with. If the Court decides this case 5-4, then I doubt that my independent study and mastery be that useful.

    The law gives the EPA the authority to decide which scientists to consult and what weight to give to the scientists whom they consult. (Who decides what is the most important component in governance.) I don’t think this is exactly equivalent to “carte blanche”, but if they conducted “extensive” reviews and cited their sources, and especially if a lot of those sources were academic scientists, then it would be hard to show that they had not carried out their duty in accordance with the law.

    The best hope for my evaluation of the risks of CO2 to prevail in this case comes, I think (sorry), from the admission by EPA, quoted by Stephen Rasey, that they had to break the law in order to devise regulations that were not absurd. Surely (?) regulations that are in direct violation of the law that authorizes them can’t stand. If there is some interpretation of the actual text of the law that permits such a practice (this is a paraphrase of a widely cited quote from Chief Justice Roberts), then … who knows.

    In the Raiche case (a medical marijuana case), Justice Thomas wrote that the interpretation of the statute provided by the majority led to absurdities, which he listed. He was in the minority. I expect the Court to rule that, if the law here at issue created absurdities, then it is up to the Congress to fix the law, not up to the court. The Court can only rule for the plaintiffs, on this interpretation, if the regulations created illegalities (e.g. documentable “disparate impacts” on Whites and Blacks, or on majority White and majority Black states.)

  88. Dear Mr. Marler,

    What a pleasant surprise to have you respond to me. Of course, discussing this topic in a non-technical (legal research and analysis – wise) way is perfectly legitimate. I should have added a line about that. I think you understood me in the essentials of what I was trying to say.

    This is not a law site. It is a science site. While a scientific discussion here will be expected to be done in a technically rigorous, scientific, manner, that should not be expected with non-science topics. I guess, being a non-scientist who knows a little about the law, I wanted to tell the scientists who are casually discussing a legal issue in a non-lawyerly manner, that there IS a correct approach to legal analysis.

    I wanted people to know that, just as in science, there is a well-established, precisely defined, many-detailed, method for precise and accurate legal research and analysis, that it is not at all a guessing game based on surface-level reading, and that it is, for the most part, not being followed here. Maybe, I just wanted to, for once, get a little respect for a field that, largely due to its simply being unknown to them, is regularly handled sloppily (as to reasoning properly) and even cavalierly (not you, Mr. Marler) by commenters on WUWT.

    (that the practitioners of law are dissed is understandable, given how many accurate observations of bad behavior exist in that set…. that data is not the mode, though, I think…)

    In closing, I’ll remind myself, once again(!), here that: THIS IS A SCIENCE SITE!
    And that’s wonderful. I’m blessed to be here.

    #(:))

    Ah, well. Even if no one reads this, it helped me to write that.

    Looking forward to reading more of your thoughtful, well-informed, intelligent, comments!

    Sincerely yours,

    Janice

    P.S. And maybe…. after a couple of days of having most of my posts here (and my personal correspondence elsewhere) ignored (proven by the commenters below those posts who would not have made the mistakes they did had they read what I wrote (not relevant here, but I just had a whole string of them on the guacamole thread confusing irrigation issue with air temperature))… I was just feeling a bit small. It’s nothing personal, but, it just gets to me once in awhile. LOL, ALL of us experience this on WUWT — MOST of us are ignored MOST of the time. That’s just life on WUWT — best site on the web!!

    • @ Janice Moore:

      Bah! You’re not ignored! The Mods love ya!

      7;->
      And you’re correct, the research in science is rigorous here (a guy could learn a lot here…). But funny, a bunch of science wonks don’t have the same depth of resources in case law…!

      I’ve had some small training in Law (I was a US Navy Legal Officer for my command. Not a lawyer, but not all commands were large enough for a JAG Officer, i.e., an actual Lawyer, under the definitions of the Manual for Courts Martial, but still had legal issues which had to be dealt with—not all were disciplinary; I was the Notary Public for the command, for example—and of course, while in training for that collateral duty, we were force-fed a lot of other law for performing investigations, etc. Military’s legal system is a bit different from what most folks are used to…), and it made me curious, and so I’ve read a great deal. I’ve been a supporter of Cato.org for some years, and have helped fund a number of Amicus briefs, one or two for successful cases seen before SCOTUS. Having read a number of those briefs, I understand what you mean; it seems like every phrase, and certainly every argument, is supported by citations to many decisions in case law.

      I agree with you completely that “I think the court will…” is of little value. Better to be able to cite decisions which identify a trend to be able to say, “based on the precedents set in these decisions, it’s likely that..”

      Unfortunately, I must claim mea culpa in that I can speak from various analyses I’ve read, legal opinions or opinions of legal scholars which I’ve read, which is, I think, vaguely better than a simple, “I think…” But no, it’s not robust. As a Navy Legal Officer, I could build a case against offenders, and in certain situations, act in the role of what would be analgous to the prosecutor. I could never act as a defense attorney; only one trained as a lawyer and who met the requirements of such under the Manual for Courts-Martial could act in that capacity; so I’m familiar with building cases and supporting charges with specifics, the same way that in Amicus Curarae writs of a Certiorari I have read they are built, phrase after phrase, supported by case after case, point by point.

      Funny this should all come up. In addition to my tribulations thus far this year, I just received a summons for Jury Duty for the County Circuit Court…! I’m curious to find out if I’m the kind of person they want as a juror, or the kind they really don’t. I guess it all depends on perspective…

      Was in a hurry (was it last night? Gah! They all blend together!) yesterday, and din’t mean to be rude or abrupt…thank you for your kind words. It’s been a year already. Good news, however! I almost lost my precious American Foxhound, Merci, to a malignant Mast Cell Tumor. I’m a hypochondriac with my puppies, though, and when I found what I thought was just another sebacious cyst, I didn’t hesitate—even though I’d just had her at the Vet the previous fortnight for yet another I’d found—and glad i did not: it turned out to be malignant cancer, as I’ve said. And in such a difficult spot that my own Vet, a wonderful doctor, referred me to a specialist, because she feared that due to the location, reconstruction would be required. As it happens, it was not, but then I sat on pins and needles for two weeks waiting for the Pathology report to find out what the Grade of the tumor was and if we’d need more treatment (and if it was radiation…game over. Can’t afford that, or the time off—three days a week for 6 weeks??). Great news: we got it fast, we got it clean, with good margins and no cancer found in the tissue surrounding the mass, no further treatment required.

      But that was the best (and the worst) of my year so far. The rest was almost as bad—I’m trying to get it all outta the way so the rest of the year is unencumbered, doncha know!

      Still, not to be rude. I hope I din’t offend?

  89. The law gives the EPA the authority to decide which scientists to consult and what weight to give to the scientists whom they consult. (Who decides what is the most important component in governance.)

    The law doesn’t give the EPA authority to to decide what the allowable limits for the pollutants are. The limits are specified in the statute. The EPA wants to use different limits for CO2. Kennedy asked for an example where an agency has been allowed to enforce limits that differ from explicit statutory limits, and the solicitor general couldn’t provide even one. This is far from a typical case of Chevron deference, where courts won’t second-guess agency decisions that reasonably interpret a statute. Numerical limits can’t reasonably be interpreted to mean vastly different limits of the EPA’s own choosing. I doubt if even most of the court liberals would rule in the government’s favor if the issue were about something less political than greenhouse gasses. I’m almost certain Kennedy wouldn’t.

  90. Dear Pat Dolan,

    No, no, you did not offend me in the least. LOL, yes, the Mods, at least, (poor guys!) read all I write. Heh. SO GLAD that Merci is healthy. Your little girl. I have a 95 lb. Riley boy (German Shepherd). Sometimes, when I’m holding him in my arms, I think ahead (he’s 8) and even though its years away, my heart grows heavy with the knowledge that all dogs are short-timers.

    I WANTED to serve on a jury (I had the time when I was called), but was dismissed. If you want to be on the jury, don’t say you were essentially a J.A.G.. LOL, lawyers tend to drag the jury over to their way of looking at the case, so, other lawyers get rid of them. Defense attorneys don’t like engineers or other highly rational thinkers, either… . Hm. I just wonder why not? lol

    Thank you for all that very well-informed empathy about legal scholarship. Much appreciated.

    Well, I’ve already used up all my off-topic cards tonight, I think, so I’ll wrap this up. I sure hope you are soon looking at that health issue in the rear-view mirror (and, soon after that, that it’s lost to sight, far, far behind you).

    Take good care of a fine warrior for truth,

    Janice
    (withprayers)

    • (I hope the Mods are dog lovers?)
      Merci will be 6 in June. Einstein, my little Aussie boy (adopted him while i was living in Canberra; Jack Russell/Miniature Fox Terrier cross, and all of 18 lbs…) just turned 13 (!!), and Cassie, my baby, a rescue from a Kennel in Mobile, Alabama, just turned a year old (and 8 whole lbs!!). Pixel, my feral cat—truly feral… I din’t adopt him. It’s more that he moved in, looked around and said, “Nice place you got here. I think I’ll stay. Oh, and you get to feed me.” Anyway, Pixel will be 4 in March…

      House ain’t a home without critters!

      Be well, Janice—

      p@

  91. MJW: The limits are specified in the statute.

    Odd that isn’t mentioned in the briefs, but if so it certainly simplifies things.

  92. Janice Moore: What a pleasant surprise to have you respond to me. Of course, discussing this topic in a non-technical (legal research and analysis – wise) way is perfectly legitimate. I should have added a line about that. I think you understood me in the essentials of what I was trying to say.

    You wrote good comments.

    This is more my metier': http://www.springer.com/?SGWID=0-102-24-0-0&searchType=EASY_CDA&queryText=kass%2C+eden%2C+brown&x=3&y=1

    I had the privilege of reading a pre-publication pdf, and the authors let me proof read it and suggest a few rewordings. To learn neuronal modeling, modeling of biological processes and circadian rhythms I expanded from statistics into non-linear differential equations and chaos. So I was prepared, at least a little, when I decided to start studying the CO2 hypothesis in more detail. Well, as to the legal system, I claim to have learned almost all I know from “Law and Order”, but I have the basic civics (“The Federalist Papers”), and I occasionally read the briefs and decisions on prominent cases (the Raiche case, New London vs that “little old lady”, Bush v. Gore.) Plus I served on a Federal Grand Jury.

    Right now I am betting on a 5-4 decision, but (here it comes!) I don’t think it can be reliably predicted. I look forward to reading the decision on this one, and I am sure there will be at least 1 dissent worth reading.

  93. @ Pat — thanks for sharing. Dogs are the best!

    @ Matthew Marler — Yes, I am impressed (smile). You have a fine mind, Mr. Marler. Glad you share it with us, here on WUWT. And, thanks for the gracious compliment.

  94. Matthew R Marler says:

    MJW: The limits are specified in the statute.
    Odd that isn’t mentioned in the briefs, but if so it certainly simplifies things.

    It’s most certainly mentioned in the briefs.

    Brief of petitioners Southeastern Legal Foundation, Inc.:

    Second, though it conceded that applying the Act’s mandatory numerical permitting thresholds to GHGs would produce absurd and impossible consequences never intended by Congress, EPA chose to relieve those consequences by rewriting those thresholds and constructing a regulatory framework far different than that carefully specified in the Act.

    (I’d provide more extensive quotations, but the PDFs on SCOTUSblog seem to have copying disabled.)

    The EPA refers to their rewriting numerical limits as the “Tailoring Rule.” Search for the term in any of the petitioners’ briefs. The statutory limit for a facility is 250 tons per year; the EPA’s limit for GHGs is initially 100,000 tons per year — 400 times greater. The change was necessary to justify applying a law that was clearly intended to apply to toxins and the like, not GHGs.

  95. MJW: Second, though it conceded that applying the Act’s mandatory numerical permitting thresholds to GHGs would produce absurd and impossible consequences never intended by Congress, EPA chose to relieve those consequences by rewriting those thresholds and constructing a regulatory framework far different than that carefully specified in the Act.

    Ah. Time for more study. Thank you.

  96. MJW, I am encouraged by that brief. According to those writers, EPA created the “absurdity” when it chose to regulate the previously unregulated CO2; and that regulation of CO2 was clearly not authorized, as shown by the explicit lists of other substances.

    It may take a while to read through all those briefs. Thanks again.

  97. johanna says: @ March 4, 2014 at 3:57 pm

    Thanks Gail, but the explanation you provided seems to focus on process and publication, not the root of the power….
    >>>>>>>>>>>>>>
    A bit more background.

    FDR set up a bunch of bureaucracies as part of his ‘New Deal’. There was a major power struggle where the Supreme Court struck down a lot of FDRs power grab. (FDR is also the president who confiscated the personal gold of US citizens by Executive Order and gave foreign banks the right to own that gold but not US citizens.)

    The Commerce Clause: Route to Omnipotent Government
    After President Roosevelt threatened to pack the Court to dilute the influence of the uncooperative “nine old men,” a majority of the justices took to the most expansive definition of the commerce clause like a drunk to drink. The Court blessed the secretary of agriculture’s power to set minimum prices for milk sold intrastate . “The marketing of intrastate milk,” wrote the Court in the 1942 Wrightwood Dairy case, “which competes with that shipped interstate would tend seriously to break down price regulation of the latter.” Yes, so? What was the Court’s point? Only that nothing — especially not liberty — should be permitted to get in the way of the national government’s power to regulate the economy.

    As hard as it may be to notice, Wrightwood Dairy still preserved something of a distinction: the intrastate sale of milk obviously entailed an act of commerce. Did that mean the commerce clause barred the national government from regulating noncommercial activities? Not for long.

    Enter Roscoe Filburn, an Ohio dairy and poultry farmer, who raised a small quantity of winter wheat — some to sell, some to feed his livestock, and some to consume. In 1940, under authority of the Agricultural Adjustment Act, the central government told Mr. Filburn that for the next year he would be limited to planting 11 acres of wheat and harvesting 20 bushels per acre. He harvested 12 acres over his allotment for consumption on his own property. When the government fined him, Mr. Filburn refused to pay.

    Wickard v. Filburn got to the Supreme Court, and in 1942, the justices unanimously ruled against the farmer. The government claimed that if Mr. Filburn grew wheat for his own use, he would not be buying it — and that affected interstate commerce. It also argued that if the price of wheat rose, which is what the government wanted, Mr. Filburn might be tempted to sell his surplus wheat in the interstate market, thwarting the government’s objective. The Supreme Court bought it.

    The Court’s opinion must be quoted to be believed:

    [The wheat] supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.

    As Epstein commented, “Could anyone say with a straight face that the consumption of home-grown wheat is ‘commerce among the several states?’” For good measure, the Court justified the obvious sacrifice of Mr. Filburn’s freedom and interests to the unnamed farmers being protected:

    It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others.

    After Wickard , everything is mere detail. The entire edifice of civil rights legislation stands on the commerce power. Under this maximum commerce power, the government has been free to regulate nearly everything, including a restaurant owner’s bigotry. The Court has held that if Congress sees a connection to interstate commerce, it is not its role to second guess….

  98. Matthew R Marler. It might make more sense to read or listen to the oral arguments rather than read all the briefs. The court’s already heard the case, so the die is case. The most worrisome aspect is mentioned in the SCOTUSblog recap:

    He [Kennedy] also seemed to want assurances that greenhouse gases would not be out of the EPA’s regulatory reach. He asked Solicitor General Verrilli: “You are not saying that if you lose, EPA has no significant authority to regulate greenhouse gases?” Verrilli said no, and cited a few possible ways that there would still be a significant amount of control, including setting nationwide limits on that form of pollution.

    Kennedy appears willing to decide a case on limits of agency discretion based not on legal principles, but on the practical outcome in this particular case. I can only hope Verrilli’s answer will provide enough assurance that Kennedy will reach what I think is the only correct legal conclusion.

  99. Gail Combs says:
    March 5, 2014 at 6:34 am

    Gunga Din says: @ March 4, 2014 at 2:41 pm
    >>>>>>>>>>>>>>>
    I agree the Constitution should be set in stone but when you have Justices who hold it in contempt ( Ruth Bader Ginsburg To Egypt: Don’t Use US Constitution As A Model “… I would not look to the US constitution, if I were drafting a constitution in the year 2012.” ) I certainly do not expect it.

    But then again I consider DC to mean District of Criminals.

    ================================================================
    Those such as Ginsburg would be the “refs” that hate “The Freedoms” in the “or” part of the analogy.
    Time to get back to basics.

  100. MJW: Matthew R Marler. It might make more sense to read or listen to the oral arguments rather than read all the briefs

    That’s a huge “might”. When they go back to chambers and start circulating drafts of opinions, the importance of the oral arguments will likely diminish as they debate among themselves. At least, that is one of the claims in some of my readings: the whole process is impenetrable to outsiders almost always.

    Kennedy appears willing to decide a case on limits of agency discretion based not on legal principles, but on the practical outcome in this particular case.

    I was thinking the same thing. In the Kelo case he went to extraordinary lengths to defend the assertion that the City of New London was taking the property for “public use”, expanding “public use” beyond what most observers (of those I read) expected. Whereas one of the briefs I read asserted that EPA had “clearly” gone beyond its statutory authority in deciding to regulate GHGs, Kennedy seems willing to grant that the literal language of the law granted EPA some discretion to find a public health risk in GHGs.

  101. All – As usual, I am late to the game – hopefully some are still checking this thread.
    Attached please find the link to the EPA Endagerment finding for CO2 as a pollutant.

    http://epa.gov/climatechange/Downloads/endangerment/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf

    I have had this link available for me to review since it was promulgated. I keep it available, and each time I see the sun break through the clouds (I live in Western Washington State so this is considered a rare and glorious event), and I start to feel really good about living here in the free country we currently know as the good Ole US of A – I reread this and I then can see where we really are heading. And the mental clouds roll back in…Hopefully the outcome of these proceedings will nullify this nonsense.

    For your use,

    Michael C. Roberts

  102. That’s a huge “might”. When they go back to chambers and start circulating drafts of opinions, the importance of the oral arguments will likely diminish as they debate among themselves. At least, that is one of the claims in some of my readings: the whole process is impenetrable to outsiders almost always.

    I know people claim predicting the outcome based on oral arguments is like reading tea leaves, but I don’t really believe that. Not to say there aren’t occasional surprises, but most of the time if a justice seems to be arguing for one side or the other in oral arguments, that’s the side he or she comes out on in the final opinion.

    I’m going to have to see if I can find it, but I seem to recall Kennedy writing or joining a recent dissent that argues executive agencies have been given too much leeway in rule making, encroaching on the separation of powers. Assuming I recall correctly, it would really by a dereliction of principles if he gives agencies even more power in order to achieve a particular result in this one case.

  103. I’m going to have to see if I can find it, but I seem to recall Kennedy writing or joining a recent dissent that argues executive agencies have been given too much leeway in rule making, encroaching on the separation of powers.

    I believe I was thinking of Roberts’ dissent in the 2013 case City of Arlington, Tex. v. FCC. The issue was whether Chevron deference should extend to an agency’s determination concerning the scope of its own authority. The court, in an opinion written by Scalia, held it should. Roberts, joined by Kennedy and Alito, vigorously dissented.

    An excerpt (with citations and most internal quotation marks omitted):

    When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous — expressing a mood rather than a message. By design or default, Congress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it exceeds the bounds of the permissible.

    It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed.

  104. Please, can someone give me an elevator speech on the “Chevron deference”.

    I expect others can define it better, but Chevron deference basically means courts won’t second-guess agency decisions which reasonably interpret the provisions of a statute granting authority to the agency, even if the court thinks there are better interpretations.

    To quote the case I previously mentioned (omitting citations and internal quotations):

    When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. But if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

    In other words, if the statute isn’t clear on an issue, the court will uphold the agency’s interpretation as long as it’s reasonable. (I’ll add that I think numerical limits are about as clear and unambiguous as anything could possible be.)

  105. MJW: . The issue was whether Chevron deference should extend to an agency’s determination concerning the scope of its own authority. The court, in an opinion written by Scalia, held it should.

    That was my less-informed understanding when I wrote that only EPA has the authority to decide whether its review of scientific evidence is scientifically valid. Note the difference though: I wrote about EPA’s evaluation of its performance (evaluation of relevant science and relevant scientists), not EPA’s evaluation of the scope of its authority.

    Thanks again, MJW. In this instance, it was the numerical limits written in the law that led to the “absurdities” identified by EPA when it determined to regulate CO2. Given the absurdities, did EPA come up with a permissible construction of the statute? I have decided that I don’t know what I think (back to that again) about that point (though I know what I would prefer), and I don’t have a bet how the court will decide. I would like to think that creation of the “tailoring rule” exceeded EPA’s authority, but will the Court agree with this preference of mine?

  106. Given the absurdities, did EPA come up with a permissible construction of the statute?

    My answer is, “absolutely not!” When Congress writes specific numerical limits into a statute, there’s no doubt that “Congress has directly spoken to the precise question at issue.” How could they speak any more clearly? Should they add, “And we really, really mean it”? The fact that applying the statutory numerical limits to the situation at hand produces absurd results shows that the statute doesn’t apply. If Congress had intended it to apply, it wouldn’t have specified limits it did.

    Let me give an analogy, which is actually almost identical, but I think makes the situation clearer. Suppose the FDA is given statutory authority to prevent toxins in food, and the statute sets the maximum allowable level for any toxin at one microgram per serving. The FDA really wants to regulate salt, but realizes virtually every food product would exceed the limit. So instead of concluding the statute doesn’t apply to things like salt, it raises the limit when applied to salt to 300 milligrams per serving. Obviously the proportion between the statutory limit and the revised limit is much greater, but if the EPA’s 400-fold increase is permissible, what principle prevents an even larger increase, provided it’s necessary to prevent absurdity?

  107. So, how does this play out in relation to the infamous ethanol mandates which were unable to be met because there wasn’t enough ethanol, resulting in potential fines for non-compliance?

  108. If we need to bring back the Court, Executive and Legislative branches of the Federal Government here is how it is done. It will closed down the EPA and the power of clauses usurped by the Courts and Congress . .

    Or maybe spacemen will come from another planet and order the EPA to back off. (Though from what I’ve gathered from recent movies, extraterrestrials hare pretty hepped up about stopping global warming!)

  109. MJW says: @ March 6, 2014 at 2:59 pm

    Or maybe spacemen will come from another planet and order the EPA to back off.
    >>>>>>>>>>>>>>>>
    Or maybe American voters will finally wise up and toss all the parasites in the District of Cr1m1nals out!

    (Well I can dream) {:>)

  110. We’re out of luck.
    Ted Cruz just decided to abolish the IRS

    http://www.dailymail.co.uk/news/article-2574773/We-need-abolish-IRS-Conservative-firebrand-Ted-Cruz-launches-political-convention-direct-assault-U-S-tax-authority.html

    Paul wants to abolish the FED: http://www.petitiononline.com/fedres/petition.html

    Anyhow I got about 35,340 results (0.09 seconds) searching for “Abolish the EPA” so that has been tried before.

    Maybe the new trend should be to “Nullify” EPA Regulations like they have proposed in IDAHO: http://dailycaller.com/2014/02/19/going-rogue-idaho-wants-to-nullify-all-epa-regulations/

    Or we should march to Washington and the White House in the same manner the Egyptians kicked out the Muslim Brotherhood in the biggest protest in human history.

    If the numbers are big enough and nobody leaves before the deal is done the success rate is very high. http://www.wnd.com/2014/01/2nd-top-military-man-calls-for-millions-to-march-on-d-c/

    With the useless hack of a President, the Vice President and “the Kerry”, so goes the EPA, the IRS and the FED.

  111. In a related manner, the Dept of the Interior is

    Sage Grouse Rebellion
    Will Obama use two small birds to limit oil drilling in the West?

    In partnership with green activists, the Department of Interior may attempt one of the largest federal land grabs in modern times, using a familiar vehicle—the Endangered Species Act (ESA). A record 757 new species could be added to the protected list by 2018. …
    The sage grouse is found in 11 western states—California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Most of the areas affected are federal lands routinely used for farming, ranching, mining, road building, water projects and oil and gas drilling.
    Environmental groups have won victories by using a strategy called “sue and settle” under which groups propose species for protected status and then sue the federal government, which settles the lawsuit on terms favorable to the greens rather than fight. [which is how the EPA got SCOTUS to grant them authority over CO2]
    Interior’s proposed “land use” amendments are draconian. They require a four-mile “buffer zone” whenever a sage-grouse mating ground is discovered on federal land. The American Petroleum Institute calls the proposed rules a “de facto ban on drilling.” It fears that compliance could cost tens of millions of dollars in legal fees and cause years of drilling delays

    It is time to find the entire Endangered Species Act (ESA) process unconstitutional under the 4th and 14th amendment and , Article 2.Sec 3
    \\ He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient;”. //

    The Constitution’s Preamble includes the neglected phrase: “to preserve the Blessings of Liberty to ourselves and our Posterity.” It is Liberty that is most Endangered.

  112. Burried on page S1415 of the Senate Climate Change Transcripts was this procedural delivery notification of a House Bill.

    H.R. 3826. An act to provide direction to the Administrator of the Environmental Protection Agency regarding the establishment of standards for emissions of any greenhouse gas from fossil fuel-fired electric utility generating units, and for other purposes.

    Hey, Republicans, Work = Force * Distance.
    If it doesn’t move (Distance = 0), no work is done.
    If no one hears about it, Force = 0.

    For follow-up….

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