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.
@ur momisugly Gunga Din says:
June 6, 2012 at 5:42 pm
Curiousgeorge says:
June 6, 2012 at 5:28 pm
Being charitable, that is always the result of misplaced compassion. Which is an emotional disease that primarily infects the political left.
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Being charitable isn’t the problem. Being “charitable” using someone else’s money is the problem.
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You misunderstand me. I was being charitable in describing the situation. As opposed to just calling them idiots. 😉
Gail Combs says:
June 6, 2012 at 8:37 am
Myrrh says: @ur momisugly June 6, 2012 at 6:45 am
….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.” …..
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Myrrh the Constitution and the Rule of Law went out the window when President Franklin Roosevelt proposed the infamous “court-packing” scheme when the Supreme Court was declaring much of the New Deal unconstitutional.
I’ve just been discovering some about Roosevelt which I’ll have to dig out, I hope I can find again, but meanwhile thanks for the links – this is appalling: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=317&invol=111
Ruling that arguing from “the right” to impose market restrictions interstate carried to its logical conclusion said the farmer couldn’t grow wheat to feed himself because outside of the quota, he’d have to buy it to not upset the quota…
Hardly surprising then:
“Appellee’s claim is not that his quota represented less than a fair share of the national quota, but that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit.
We do not agree.”
I looked up Jackson who gave the ruling – odd fellow, ruling for preemptive strike against a Communist organisation in Dennis v United States, and this: “Justice Jackson and procedural due process
Justice Jackson was one of the two great defenders (along with Justice Frankfurter) of procedural due process, for the rule of law that protects members of the public from overreaching by government agencies. One of his hymns to due process is often quoted:[43]
Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly… http://en.wikipedia.org/wiki/Robert_H._Jackson
Which I need a lawyer to translate for me – what is substantive that they should bend to Government’s will?
“Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.”
I can’t see (bearing in mind I’m not sure I understand what’s being said by him in this statement thought great), how he could present the ruling against Filburn worked out to the tiny convoluted end that he couldn’t feed himself, if Jackson is really was one of two great defenders “of procedural due process, for the rule of law that protects members of the public from overreaching by government agencies”
So it’s not that the agencies are exceeding the Constitution, but only concern for correct procedure?
The second paragraph only adds to my confusion.
However, re: http://www.fff.org/blog/jghblog2009-01-15.asp
“Not only was the philosophy of the New Deal, with its elements of socialism and fascism, alien to the principles of liberty and free markets on which our nation was founded, it was also in violation of the principles of limited government established by the Framers in the Constitution. That was why the Supreme Court was declaring much of the New Deal unconstitutional ”
I’d earlier found this, coincidently on the same site: http://www.fff.org/freedom/fd0609d.asp
“Roosevelt based his order on the 1917 Trading with the Enemy Act, which gave the president the power to prevent people from “hoarding gold” during a time of war. Of course, the United States was not at war in 1933, but Roosevelt claimed that it was a “national emergency” and Congress and the courts meekly bowed to the executive.
In earlier times, such an order would have been met with outrage, as freedom-loving Americans would have rebelled against such a confiscatory order from Washington. Certainly, no president before the Progressive Era would have ordered such action for fear of impeachment or being voted out of office at the next election. However, by the time Roosevelt took office in 1933, the courts already had upheld government restrictions on freedom of speech (especially during World War I) and Congress had begun the unconstitutional delegation of some of its lawmaking powers to the executive branch.”
But what the man did to the economy and the farmers is just beyond belief, (I can’t get part one on fff.org) http://www.lewrockwell.com/anderson/anderson154.html
“Progressives who dominated the Roosevelt administration held that the principal cause of the economic downturn was falling prices, along with falling wages. Furthermore, they believed that the cause of falling prices was “overproduction,” so the “cure” was to find ways to limit the production of goods. Thus, in the minds of the New Dealers, the government needed to restrict production and force up prices. As prices rose, so would wages, and high wages would bring the country out of the Depression. For inspiration and direction, they used the economic programs of Italy’s fascist dictator, Benito Mussolini, as their model.”
Previous to discovering about 1913 and the bankers cartel takeover, from what I knew of the American Constitution detail from discussions and such I was under the impression that Americans understood it, they could spot the violations in various events discussed, and, optimistically I thought they’re not actually promoting it as the alternative to democracy etc. because they simply take it for granted, and with a bit of reminder that putting it into words would help the rest of us.., but, I see now that they were only angry at its loss, they didn’t know what they had compared with other systems. Maybe it’s because the attacks against it have been going on for so long by your own Government and Congress has done nothing of value to stand against this, that really all of it’s been lost – how could the Patriot Act come into existence otherwise?
Looks like we’ll all, who have the Common Law system, have to start from scratch retrieving it. They’ve been very thorough in hiding it from us.
Curiousgeorge says:
June 6, 2012 at 6:43 pm
@ur momisugly Gunga Din says:
June 6, 2012 at 5:42 pm
Curiousgeorge says:
June 6, 2012 at 5:28 pm
Being charitable, that is always the result of misplaced compassion. Which is an emotional disease that primarily infects the political left.
=======================================================
Being charitable isn’t the problem. Being “charitable” using someone else’s money is the problem.
*******************************************************************************
You misunderstand me. I was being charitable in describing the situation. As opposed to just calling them idiots. 😉
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Yes, I did miss misunderstand. Sorry. No harm in making the same point twice.8-)
Gunga Din says:
June 6, 2012 at 6:12 pm
“There are two ways to conquer and enslave a nation.
One is by the sword. The other is by debt.” John Adams 1826
“You cannot strengthen the weak by weakening the strong.” A. Lincoln
“When injustice becomes law, then resistance becomes duty.” T. Jefferson
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@ur momisuglyGunga Din. Your name doesn’t sound to be American, but your words and thoughts most certainly do.
@ur momisugly Myrrah. Deep thoughts are required on that.
eyesonu says:
June 6, 2012 at 7:58 pm
@Gunga Din. Your name doesn’t sound to be American, but your words and thoughts most certainly do.
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Thanks. Where I worked in the mid 80’s the maintenance staff used CB radios. Someone gave me that “handle” since I did the water and wastewater treatment. I tried not to get my responsibilities mixed up.
Chuck Nolan says:
June 6, 2012 at 6:08 pm
Hoser says:
June 6, 2012 at 8:15 am
“Water supply problems stemming from bad court rulings based on poor science continue to impact agriculture in California and harm our economy [4].”
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Isn’t water Dr. Gleick’s game? Guess they need him back.
Could water be the next CAGW….UN’s stab at a people control vehicle?
Certainly looks like it, in England recently they declared a drought – and then it rained big time which made them look silly – but the problem is not lack of water, but refusing to sanction the building of more reservoirs to cope with the population expansion from immigrants, and no money now that water has been privatised to repair the infrastructure (corporations have to work to the rule that profits must be maximised for shareholders), so the leaky pipes just get leakier. There’s no water shortage.
Not sure if all, but I think France owns all of Britain’s water. When Britain made the first step into joining in the EU forerunner, only economic union at that time, not political, France was given the production of English apples – which didn’t have the same taste as English climate perfect for apples, France too hot – we had to import cardboard tasting Golden Delicious from France, and all english orchards were grubbed up. Really, not kidding. A very few left which weren’t allowed to retail. On top of that all our vast varieties of fruit and veg were outlawed, seed couldn’t be sold on the open market and lots more like this, only approved veg and seeds on the EU list were allowed. Private gardening clubs were started where old and tasty and sometimes knobbly.., against the packing uniformity of the bland veg sanction, were grown in private gardens and club members could choose a couple of packets of seed a year from what was produced, still going. There’s been some clawing back at local market level, but the centuries of variety of apple and veg growing was basically wiped out.
And the big corporation water takeover started earlier in countries easy to manipulate, it’s a real horror story:
http://lookingglass.blog.co.uk/2012/02/02/as-benign-as-lucifer-12613110/
As for Haiti – the UN force effectively rules it and the millions collected by charities for the restructure after the quake show effectively zilch use for the people displaced by destroyed homes and infrastructure.
Bolivians fought back and won, chucked out the World Bank and got their water back.
In India, besides the suicides of hundreds of small farmers caught in the seed machinations created by Monsanto tactics as they’ve also established in Iraq (farmers there can’t save their own seed for replanting), the outside corporations water grab continues, such as Coke destroying villages and farming:
“Many thousands of villages have been unable to get water even from tankers and have been abandoned completely. The entire society is being violently altered by what amounts to wholesale theft of the nation’s water. And, of course, larger forces are prepared to “help” those most in need. One of the powerful forces driving the growing problem worldwide has been the World Bank which, in late 2009, had the astonishing temerity to say that “under current practices” one-third of the world’s population would have access to only half the water they need by the year 2030. The report then recommended that $50 billion be invested annually by governments and business in water management projects. ”
Bastards.
That’s the grab Gleick is part of under the euphemism of concern for the equitable distribution of water, the management, the Regulators, seeks total control of it, and their end view openly stated for those who can read their newspeak.
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A point about mercury in fish – somewhere I read that fish also good source of selenium which neutralises the effects of mercury, only small amount needed, so those creating fear stories and putting people off eating fish probably have some agenda. The ‘package’, fish, comes with its own built in defence.. Like aspirin which can cause problems if taken in larger amounts regularly for pain, isolating it from willow bark also takes out the inbuilt defence against this.
eyesonu says:
June 6, 2012 at 7:58 pm
@ur momisugly Myrrah. Deep thoughts are required on that.
Yes, very deep. In Britain they’ve created a particular structure to pretend Common Law doesn’t exist, too complicated to explain here, but basically the UK is a Corporation and all the judiciary act for it and for its legislation which is created by parliament, calling this ‘legal’ which gives the impression it is the same thing as ‘lawful’ in Common Law. It’s a fraud because they don’t explain they’re using the same words but with a meaning peculiar to them in their system, they have devised their own way of getting a ‘contract’ in place passing against the people by the police acting in both roles, upholding Common Law and as the private police force for the Corporation. Not making this clear, which makes it a con, when they announce themselves as police “officers” they are stooges of the Corporation, and when they ask “do you understand” they claim that is acceptance of them in that role, therefore contract is established, i.e. you have agreed to be under their jurisdiction. The antidote if told that you have to do something because their is an act of parliament which makes it legal, is to ask for the law which says you have to. If they try to pass of ‘an act’ as being lawful in Common Law, they can be done for fraud. Reminding of them of this and asking again for the law which says you have to do this, might get them to pause at least to check… I think most now trained as this private police force, they’re not told the difference, and, as in all these kinds of machinations their original defence role in Common Law is sometimes allowed to confuse them, and us, even more.
Judges know the difference. They take an oath under Common Law, but act under Company Law, and they don’t tell you but entrap you in their legalese, which might salve their conscience, but is nonetheless fraud.
Scroll down.. http://www.metro.co.uk/news/857455-judge-arrested-as-british-constitution-group-storms-court
Judge ‘arrested’ as British Constitution Group storms court
Hundreds of protesters from the anti-establishment British Constitution Group stormed a Merseyside court yesterday and ‘arrested’ a judge.
About 600 members of the anti-establishment British Constitution Group gathered at the building as one of their prominent voices, Roger Hayes, faced a bankruptcy hearing for non-payment of council tax.
In chaotic scenes, police rescued judge Michael Peake and escorted him safely from the county court in Birkenhead, Merseyside.
Several arrests were made and police dog-handlers called to the scene.
As Mr Hayes emerged from the court surrounded by his supporters, he said: ‘The judges are breaking the law in their own courts. I asked him (Mr Peake) if he was serving under his oath of office.’
He added: ‘I asked three times for him to confirm this and he refused, so I civilly arrested the judge and I called upon some people in the court to assist me in this.’
A p.s. on Obama version of the Constitution, as with all these kinds of reports, the particular bias will ignore the contradictions, but it seems Obama just makes things up on the fly: http://www.washingtontimes.com/news/2011/sep/16/obama-tears-up-the-constitution/
OHN – you said that the EPA’s favoured research was tainted, and you’d explain how and why. Please do and share with us all. Thanks
[SNIP: We’re not going there. -REP]
People such as Judge Milan Smith are as rare, and are worth their weight in gold.
Here is a man who sits in a highly influential position in his society and is prepared to think in a clear and farsighted manner as to what is the real purpose of the job he has. The vast majority of those in the legal profession, having been fully indoctrinated with the conventions of law, and with little thought to the real purpose of their decision making, simply rely on the rubber stamping decision making processes of ‘precedent’.
This all stems from the days of the Emperor Justinian I setting Tribonian the task of writing a uniform code of law, primarily based on the decisions of the three greatest ‘judges’ of the time. With his team, Tribonian duly did so, combining all those various judgements into one code, based on the precedents set by wise decision making by the wise judges. Most modern law is based on this, but the very funny thing is that recent research shows that where there was no agreement, Tribonion simply falsified and invented it! The major basis of our laws could be brought into question.
Surely, in this day and age, with all our ability to search and research, judges could be called to make sensible informed decisions without resorting to simple precedent, and hopefully without regard to politics.
Mercury in nature is HgS, which is insoluble. You need to heat it up to high temperatures to release the Mercury. If the court was truly worried about Mercury, they would ban CFLs — those CFL lighbulbs contain mercury vapor which is highly toxic. Given the billions of people who will be dealing with these bulbs, the chance of one breaking in many houses is a virtual certainty. Why isn’t the ninth circuit blocking these bulbs?
It’s remarkable that the greens actually is pushing those twisty bulbs into the the lifes of ordinary people without any discussions about the mercury that’s in them.
Right now, it’s a race for LEDs to become cheap enough to make the CFL’s obsolete, but we are already facing a decade’s worth of risk when literally billions of these mercury devices are being placed into the homes of unsuspecting people.
The link I gave about EPA calculating the actual benefits of mercury reductions in the June 6 post at 6:16 AM was from the draft Regulatory Impacts Analysis (RIA) for the mercury reduction rule of EPA (MACT).
In the final RIA, the information was put elsewhere, so the page numbers are not longer correct, although the information is (with the exception of the total cost of the rule, which is now listed as $9.6 billion, not $10 to $11 billion). Here is the link for the final RIA:
http://www.epa.gov/ttnecas1/regdata/RIAs/matsriafinal.pdf
On page ES-1, EPA quantifies the benefits from reducing mercury:
“The monetized benefits from reductions in mercury emissions, calculated only for children exposed to recreationally caught freshwater fish, are expected to be $0.004 to $0.006 billion in 2016 using a 3% discount rate and $0.0005 to $0.001 billion using a 7% discount rate.”
These benefits are as low as half a million dollars and as high as 6 million dollars, for a rule which costs about $9.6 billion dollars (with a B).
On pg. 4-3, EPA explains the benefits derived, e.g., increases in aggregate IQ across the nation due to the ~ 90% reduction in utility emitted mercury:
“The first analysis (Section 4.2.1) 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.”
As in my earlier post, the total IQ loss across the US should be 512 IQ points nationwide, based upon 240,000 affected children being born each year. But unlike the earlier draft RIA, they don’t give the aggregate 512 IQ loss figure anymore. You have to calculate it by multiplying the 240,000 affected children by the 2.09/1,000 IQ point loss per children (which comes to 501, but I assume rounding error will get 11 more IQ points nationally).