Guest post by Alec Rawls
Gabrial Malor at Ace of Spades HQ pulls some choice excerpts from what he calls an “epic broadside” by Judge Milan Smith. After reviewing a number of cases where the Ninth Circuit has upended whole fields of economic activity with rulings that contradict both statutory requirements and executive rulemaking (imposing stormwater runoff regulations on logging roads that had been explicitly exempted from such regulation by the EPA, twisting water use statutes to parch California’s central valley in favor of Delta Smelt), the last paragraph of Smith’s dissent drops the hammer:
No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.
Our green-obsessed legislatures are plenty bad but at least their electoral accountability forces them to limit the damage. Green judges are apparently seeing this as a problem that they should correct. After all, isn’t the role of the courts to hold the legislative and executive branches to higher principles than their worldly natures incline to?
Yes, but only when the higher principles in question are those laid out in the Constitution. Green principles, found nowhere in the Constitution, are entirely for the “political branches” to embrace or renounce as they see fit, so long as the Constitution is not violated.
When judges impose their own political principles they are the ones who are violating the Constitution. Trusted to defend against tyranny, they instead become tyrants themselves.
Willie Soon, Edward Calabrese and the not-so-demon mercury
The case that occasions Judge Smith’s dissent involves minute amounts of mercury stirred up by small scale suction dredging for gold. Both elements are heavy so neither is going to be carried far by the current but some increase in water-borne mercury does result, which is claimed to present a risk to drinking water downstream.
The California department of Fish and Game wants to deregulate the industry (originally regulated to protect fish, which can be accomplished by seasonal restrictions). That brought in the eco-activists and the EPA, both demanding suffocation by green tape, and the Ninth Circuit finds a way to do their bidding, regardless of the law.
But on to the science. As Willie Soon discussed here Monday, mercury regulation is highly irrational, with regulators imposing huge costs to reduce human mercury emissions that are dwarfed by natural emissions. Lacking any evidence that natural levels of mercury exposure are harmful, there is no basis for thinking that our small additions are doing any harm.
Actually, we can go further and say that small increases in exposure to mercury are beneficial. This is due to the poorly understood but well documented phenomenon of “hormesis” whereby seemingly any substance that is harmful in higher doses will have a “hormetic range” where small enough doses will typically have a stimulative or prophylactic effect, presumably from the body gearing up to resist the assault.
The expert on this subject is Dr. Edward Calabrese from the University of Massachusetts who has revolutionized toxicology with his vast research on hormetic effects, but the regulators don’t want to hear it:
Regulators currently assume that toxins either always pose some risk at any level or that there’s a threshold below which toxins won’t cause health problems. But while these assumptions are used to regulate everything from mercury to pesticides, Calabrese argues that they just don’t reflect the paradoxical and sometimes beneficial effects seen at low doses in the lab. “The central pillar of toxicology is the dose response,” he says. “I’m telling them that they got the most fundamental aspect of their field wrong.”
Here is a link to one of Dr. Calabrese’s papers on the subject. If you are not familiar with the hormesis phenomenon it is well worth a look. The hormetic effects of mercury are particularly well studied thanks to the thimerosal scare. This study, for instance, found that low dose exposure to thimerosal from its use as a vaccine preservative actually lowers autism rates, much to the surprise of its authors. Calabrese’s response (linked below the abstract), clues them in to the mother lode they just suction-dredged a nugget from.
Demonization of mercury is one of the main weapons the EPA wields against CO2-producing fossil fuels. Mercury and Air Toxics Standards released by the EPA in December (also called MACT rules for the Maximum Achievable Control Technology criterion that the EPA applies) are right now forcing the retirement of many existing coal-electric plants, even though for the great majority of people current levels of exposure to Mercury are well into the hormetic range, meaning that mercury exposure from coal generation actually has significant net health benefits.
The EPA is unplugging the grid in order to make us less healthy, a lose-lose proposition. It’s just what the Bizarro-Earth eco-doctor ordered: “first do harm.” Wherever they manage to ensconce themselves the eco-religionists betray the established principles of their professions. In the government bureaucracy and in academia they jettison science fact in favor of eco-presumption, then in the courts they treat their eco-ideals as a higher standard to which the other branches are to be held. It’s models all the way down and thuggery all the way up.
Sounds like common sense to me. Well said that judge.
The Ninth has the dubious distinction of having more of its decisions overturned by the Supreme Court than any other Court of Appeals — an 80% reversal rate. Rumor has it that the American Bar Association refers to it as the “Ninth Circus Court of Appeals”…
“It’s models all the way down and thuggery all the way up.”
Hopefully that will all change in the next few months. Two things have to happen: Rio+20 needs to be a complete failure, and the Obama admin needs to be removed from power. Both are already on the ropes. Time for the knockout blow.
Interesting but to say:
even though for the great majority of people current levels of exposure to Mercury are well into the hormetic range, meaning that mercury exposure from coal generation actually has significant net health benefits.
is quite a leap. “Significant health benefits” would indicate to me a whole pile of research pointing to this fact.
Nothing coming from this administration surprises anyone anymore. The EPA is out of control and the others too-especially the Justice dept. Maybe a big “broom” will sweep them out in Nov.
OT but this Walker win in WI…. does it have implications for AGW? It seems that in general people have had it with silly left wing spending, ideology etc… (Postee not leftist or right inclined)
“I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”
Boy, you’re 40 years late on that. Ship sailed in 1962, sank in 1973. Anyone who still respects the courts at this late date is hopelessly deluded or senile.
Isn’t the 9th Circuit the court recently in the news for a big Hawaii annual conference?
Yes, as a matter of fact, it is. See here.
This will be the fourth time in the last ten years the court holds their annual conference in Hawaii. Apparently their passion for rule-making does not extend to rules about frugality with public money.
I didn’t know about the work of Dr. Calabrese. Important stuff.
And yes, the rule of law is bad enough, but the rule of judges demands no judicial independence and does indeed cause despair of rule – by any means.
“Actually, we can go further and say that small increases in exposure to mercury are beneficial. This is due to the poorly understood but well documented phenomenon of “hormesis” whereby seemingly any substance that is harmful in higher doses will have a “hormetic range” where small enough doses will typically have a stimulative or prophylactic effect, presumably from the body gearing up to resist the assault.”
Hmm. So what about homeopathy? I believe also that radiation in small doses can be beneficial.
The reason for the “Carbon Tax” was to raise tax monies for broke governments. It is interesting that with the EPA rules, the EPA is terminating power plants that produce “Carbon”; and , therefore, reducing the “Tax Income” from the “Carbon Tax”.
Since the EPA is now causing a reduction in tax incomes to the governments, I would suggest that the EPA will be put on a very short leash. There will be a change by both the Courts [caused by the tax hungry government] and the other legislatures to repudiate the EPA’s efforts as being too extreme.
I would like to say that my comments are sarcasm, but we all know that any entity that affects tax incomes in a negative way will be crushed.
Obama gave reasons for why America is [became?] great. I would suggest that the reason American became great was the temporary elimination [1700-1900] of the Kings and Queens [government] of regulation, taxation, and oppressive religious rules.
Don’t worry, the rulers are back. This time with a world wide overreach. The methods are simple:
health care, EPA, global warming, carbon tax, etc. The bottom line is CONTROL under the guise of peace so that we don’t have a third world war.
How long have we been told that mercury in vaccines isn’t a health threat, that mercury in fillings (that coincidentally live in a perfect petri dish in your mouth) don’t pose a health threat, yet entire industries are brought to their knees on account of it?
While we’re focused here on the effect of judges on climate (money, in actuality), they also have far reaching influence on marriage, guns, health care, and privacy. That is why we should be fearful of a president “stacking the court” so as to have politically popular power in contrast to good constitutional interpretation.
Thank you, Alec, for posting this.
You cannot legislate spirituality.
Even if the California judges had good ideas based on scientific fact and economic pragmatism, (which they don’t,) you cannot bully people into being good.
A great example is the example of Prohibition. It seemed we’d save money and all be more healthy if alcohol was illegal, and therefore even sipping hard cider became against the US constitution for a while. Did it improve our society? No. It made people disrespect the law. It made crooks prosper and hurt good people.
Such “unintended consequences” are especially seen among a Free People, however even in cultures ruled by brute force people find ways to slip around the laws. When certain Moslem cultures closed down all taverns, and punished anyone caught drinking very harshly, what occurred was that all the taverns were replaced by coffee shops, and men drank coffee that could melt your teeth. There are old writings where Ottoman clerics bewail the bad influence such coffee shops were having on society.
While we need some laws against things like murder, for the most part people become more spiritual when they are this thing called “happy.” And, while happiness is a very great mystery to us all, it is more likely to be seen among Free People than people who are bullied.
well done.
Be careful about using hormesis as your main line of attack on mercury regulations. It may apply in this case, it may apply in many other cases, but maybe not. There is a stronger line of attack.
Willie Soon’s article on Monday reviews the excellent research in the Seychelles Islands, where the women on the coast who eat fish have about 10 times the mercury in their bodies than does the average woman in the US. The EPA rejected these articles, and instead used other research, which was tainted, to come up with the notion that tiny increments of methylmercury, in women who have 10 times less mercury than those in the Seychelles, will harm the IQ of a growing fetus. If anyone wants to know why EPA’s favored research was tainted, ask, and I’ll post about it.
But let us assume that EPA is right, just for the sake of argument. How much harm would be alleviated by the 90% reduction in utility mercury emissions that EPA has ordered under the MACT rule?
EPA actually tells us the answer in their Regulatory Impact Analysis (RIA) for the MACT rule. The answer is that a grand total of 512 IQ points, across the country, distributed across 240,000 children, is gained for the $11 billion dollar rule. EPA calculates that this comes out to 2/1,000 of an IQ point per child. The valuation of the added 512 IQ points, based upon increased lifetime earnings, is between half a million and about six million dollars annually.
You can find these figures in this link:
http://www.epa.gov/ttn/ecas/regdata/RIAs/ToxicsRuleRIA.pdf
From page 5-2:
“The first analysis (Section 5.2.1) estimates benefits from avoided IQ loss under various regulatory scenarios for all recreational freshwater anglers in the 48 contiguous U.S. states. The average effect on individual avoided IQ loss in 2016 is 0.00209 IQ points, with total nationwide benefits estimated between $0.5 and $6.1 million.“
You might ask, how is it possible for EPA to say that there are massive benefits from this rule, if the reason the rule was promulgated — mainly reduction of mercury emissions — has such tiny benefits?
The answer is that when you reduce mercury, you also reduce emissions of sulfur dioxide, which turns into sulfates over hours and days. EPA claims that sulfate kills you — they’ve been claiming this for over two decades, starting from when there was almost no research on tiny airborne particles — and that each death, whether by days or months or years, is valued at about $9.5 million each.
Despite all you have heard for decades from the Sierra Club and EPA, sulfate is likely benign. It isn’t biologically active, which distinguishes sulfate from many other tiny particulates. A 39 page review article of all the toxicology of sulfates in 2003, by R Schlesinger and F Cassee, found no adverse impacts. That article is called: ATMOSPHERIC SECONDARY INORGANIC PARTICULATE MATTER: THE TOXICOLOGICAL PERSPECTIVE AS A BASIS FOR HEALTH EFFECTS RISK ASSESSMENT. It is behind a paywall at Inhalation Toxicology, unfortunately.
I would think the ninth circuit would get tired of the US Supreme Court overturning their decisions and start using actual jurisprudence. Of all the appellate courts, the ninth is the most overturned. If I were a judge on one of the other circuits and a case came before me similar to one ruled on by the ninth, I would read their ruling so that I would know what not to argue in the decision. They occasionally get the low hanging fruit right (cases that probably should never have been brought to them in the first place – but some of the lower courts out there are worse.) People wonder why businesses are fleeing the west coast, rule of law might be part of it. Would you want to set up shop in an area where your legal costs are going to be through the roof because every litigation winds up at the Supreme Court?(after working through all the whacked out lower courts and getting bogus decisions – lawyers getting rich at every level).
All things in moderation.
Gosh, a judge said that..
How many of these judges actually know the Constitution? I only ask because Obama claims to be an expert, teaching it and all that, but doesn’t even understand it’s basic premise.
http://funreviews.net/uploads/1/obamapainting.jpg
from http://funreviews.net/publish/news_alerts/Painting_Portrays_Obama_Trashing_Constitution.php where you can order a copy
A couple of examples from
http://tucsoncitizen.com/morgue/2008/10/30/101091-thomas-obama-marx-and-trashing-the-constitution/
“A complete restructuring of society is what Obama advocated in a 2001 interview on a Chicago public radio station.
According to Politico.com, in that interview, Obama – “reflecting on the Warren Court’s successes and failures in helping to usher-in civil rights – said, ‘I think where it succeeded was to vest formal rights in previously dispossessed peoples.’ ”
He has it backward. The Creator already endowed African-American people with these rights, which is precisely the argument powerfully made by Martin Luther King Jr.
Any rights that are “vested” in people by other people may be removed by the same or future people. Endowed rights are “unalienable” and what America did was to finally recognize those rights.
The distinction is crucial ..”
…
“Obama thought the Warren Court should have “broken free” from the constraints placed on the Constitution and the courts by the Founding Fathers. This is remarkable hubris.
Obama said the Constitution mostly “says what the states can’t do to you . . . what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf.” That’s because the Constitution is about liberty and protecting citizens from oppressive and invasive government.
This is scary stuff. That it is only now surfacing is another reminder of the poor job the mainstream media have done in vetting Obama.”
This was written before the election – which Constitution did Obama swear to uphold, the real one or his own, the one someone must have taught him and which he then taught?
Obama doesn’t know the Constitution. How many judges do? There was a quote a while back from a judge saying the Constitution was whatever he ruled it to be.
But isn’t this a “dissenting opinion”? Meaning we lost the case to green judges? I’m happy to see at least one judge on the notoriously activist 9th circuit understands his role. However, it doesn’t amount to a hill of beans at this point.
I doubt that mercury or arsenic or other toxins are beneficial at any level but on the other hand at very low exposures they are probably not harmful either.
http://bibowen.hubpages.com/hub/Hughes-Hubris
Hughes’ Hubris: Is the Constitution “What the Judges Say it is”?
“But any written document, like a contract, is subject to interpretation. So, how about the Constitution? How should it be interpreted? Former Chief Justice Charles Evans Hughes provides a modern answer to that question. Hughes once stated in a speech in 1907 that “we are under a Constitution, but the Constitution is what the judges say it is…” Today, though Hughes is dead, he leads the chorus of jurists and judicial activists that seek societal change and desire the sanction of the Constitution to do it.
Well, is Hughes right? Is the Constitution whatever the judges say it is? Does the Constitution have no meaning independent of the jurists who interpret it? If so, get ready because if the Supremes are the voice of the Constitution, then we no longer live under the rule of law—we have government by tribunal. If the Constitution is whatever the judges say it is, then they can make it say whatever they want. “Up” becomes “down” under Hughes’ constitution.”
“The Constitution has a meaning that is independent of the judges and attorneys who mull over it and that meaning is rooted in the historical intent of the drafters of the document. If the American people and their representatives believe that some features of the document are outdated or simply mistaken, then the people and their representatives can lawfully amend it. But let’s not have any amending via judicial decisions where justices make the Constitution say whatever they want it to say.”
Judges are not politically accountable, as Judge Milan Smith says, but surely they have then to be personally accountable?
That’s how it was under the old Brehon Law in Ireland – a judge was personally liable for his decision. If shown to be a bad decision he had to pay recompense for it.
“Those not so attached lived simply on the fees of their profession, and many eminent brehons became wealthy. The legal rules, as set forth in the Law Books, were commonly very complicated and mixed up with a variety of’ technical terms; and many forms had to be gone through and many circumstances taken into account, all legally essential: so that no outsider could hope to master their intricacies. The brehon had to be very careful; for he was himself liable for damages, besides forfeiting his fee, if he delivered a false or unjust judgement.”
From: http://www.alia.ie/tirnanog/sochis/iv.html
A judge making laws for an ideology which has wrecked thousands of peoples lives and destroyed industries … how much does he owe?
Solar cells found to be 23,000 TIMES worse than CO2! http://thedailybell.com/3965/New-Book-Solar-Cells-23000-Times-Worse-for-Environment-Than-Carbon-Dioxide
Legislative authority was outsourced to regulators a long time ago. Both parties are guilty. Regulations can be passed without the scrutiny of the legislative process. Legislators can avoid guilt by blaming regulators while at the same time advocating that they keep their seat in order to keep an eye on the regulators. It’s a great game and we lose every time.
Eco-fascist James Hansen admits warming not manmade!
http://occupycorporatism.com/eco-fascist-james-hansen-admits-global-warming-is-not-man-made/
After the release of Methyl Mercury in Minimata the concern over Mercury contamination of water was clearly rational.
However, the dosage of mercury that causes harm is not so clear cut.
The reason for the ambiguity being the belief that mercury is concentrated an aqautic life until it is stored in fish fat. This is then eaten by people at high concentrations. Which is very bad, obviously.
Yet, despite the theory being taught in textbooks, I have seen no evidence that mercury does accumulate in fish.
Does anyone have the evidence?