Twelve States (Texas, Alabama, Florida, Georgia, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina and South Dakota) today filed a petition to have the Supreme Court review the D.C. Circuit’s decision not to strike down EPA’s climate regulations.
The States argue that the Congress never intended for the Clean Air Act to regulate greenhouse gases. The Clean Air Act was designed in 1970, in order to fight smog. The law’s tools and mechanisms are totally inappropriate for regulating greenhouse gas emissions, which are much more prevalent than the pollutants that cause smog.
(full petition follows)
The States allege that EPA has overstepped its legal authority as the Agency tries to square the circle of fighting global warming with a law that was written at a time when people were scared of global cooling.
The full petition is here: http://www.globalwarming.org/wp-content/uploads/2013/04/States-GHG-petition.pdf
Submitted by James Wallace
@richard;
not American either, but at least the Supreme Court will need to consider the demand, and maybe some media attention will result. I find it in any case very heartening that 12 US states dare to challenge the seemingly almighty EPA. It is a sign of the times, it would not have happened 4-5 years ago, and it shows that the times they are a-changin’, to the better.
Whether or not the court will accept the case is maybe not the primary question? Twelve states have spoken, the equivalent of twelve small countries in Europe, and if nothing else happens, at least the Supreme Court attracts attention, and I suppose many cases are submitted to this court with not only the legal issue in mind, but at least a certain consideration of the publicity value too?
This is a powerful message! Congratulations, America.
ConTrari says:
April 22, 2013 at 4:27 pm
… at least the Supreme Court attracts attention, and I suppose many cases are submitted to this court with not only the legal issue in mind, but at least a certain consideration of the publicity value too?
——————–
I think so too. I’m no lawyer, but this
sounds more like rhetoric intended for public consumption than the basis of a serious constitutional challenge to me. ~shrug~ But what do I know?
From the petition:
“EPA’s decision to replace the numerical
thresholds in the Clean Air Act with targets of its
own making is not and cannot be based on any
intelligible principle provided by Congress. The Act
envisions that EPA will either comply with the
numerical thresholds or seek corrective legislation
from Congress; as a result, it does not supply any
intelligible principle for the improvisation project
that EPA has undertaken in the Tailoring Rule. So
even if EPA could conjure up a non-arbitrary
justification for choosing 75,000 tpy CO2e and
100,000 tpy CO2e as the “new” threshold levels for
greenhouse-gas emissions, it cannot link these
decisions to any guideline provided in a federal
statute, and it therefore cannot characterize the
Tailoring Rule as anything other than agency
legislation.”
Petitioners argue that EPA can adopt their “tailoring rule” only if Congress provides a guiding principle, which they have not.
Ian is correct that SCOTUS would not get into scientific arguments; and I assume that is why this petition is very narrowly aimed at the EPA’s “tailoring” rule, and whether or not court decisions that enabled EPAs regulation of CO2 applied only to tailpipe emissions vs stationery plants.
BUT, one legal argument not included (as Virginia AG Cucinelli has championed) is that the SCOTUS ruled that the EPA could regulate CO2 IF they conducted an endangerment finding that concluded that CO2 was indeed a pollutant. They did no such study and instead only referred to IPCC reports. (There exists very specific procedures for such EPA findings and EPA clearly violated their own requirements for such findings.)
Maybe the AGs are purposely keeping some bullets in reserve.
Sometimes when I pointedly speak my mind [frequently insultingly] about certain “climate scientists” and warmist journalists {?} Anthony spanks me and snips me. If I spoke my mind about the EPA the would not only snip me, but he would probably ban me from commenting. Although I think Anthony is a peaceful man he might hunt me down and do me bodily harm.
The epa [no caps intended] is the outstanding example of what is wrong with our current federal government. If I spoke freely about obama and democrats………….
Seems to me the Tailoring Rule would fall under Administration Discretion, the question for the court would be whether it’s an abuse of discretion.
38 states did not challenge the EPA. Easy to see where the majority of Americans are on this subject.
Now the Boston bombing is used to make the case for a carbon tax rebuilding America. Read the BS from Friedman in the NYT: http://www.nytimes.com/2013/04/21/opinion/sunday/friedman-how-to-put-america-back-together-again.html?pagewanted=all
In support of its finding that CO2 emissons are an endangerment to public health and safety, the EPA claims that this finding is a consequence from scientific research. However, under the Daubert standard of the federal courts of the U.S., the methodology of this research was not “scientific.” Thus, the EPA’s finding was illegal under U.S. law.
38 states did not challenge the EPA. Easy to see where the majority of Americans are on this subject.
The majority of legislators. It says little about anything else.
And wrong is still wrong, no matter how many support it.
sceptical says:
April 22, 2013 at 7:57 pm
38 states did not challenge the EPA. Easy to see where the majority of Americans are on this subject.
========
It may simply be that “sceptical” is taking the “Easy” way out of challenging the out-of-control EPA. Being the assertive minority doesn’t mean the non-assertive majority doesn’t agree with the minority, it just wasn’t as momentarily assertive. The majority of U.S. citizens do not believe in CAGW.
Re: “administrative discretion”: a United States administrative agency can act in two modes: 1) judicially, like a court; or 2) rule making, like Congress. In the rule making mode, as the EPA was, here, the agency has little discretion. They must follow Congress’ guidelines in its enacting legislation and its amendments.
The science might come into play if the EPA argues that CO2 “science” justifies its rules, that is, that its rulemaking was not arbitrary and capricious, but, rather, “based” on “facts” (ha). Given that the court agrees to hear the case (and I don’t see why it would not, except for problem of the usual enormous number of petitions for certiorari), it may limit argument to exclude all science, declaring the science to be too unsettled for expert testimony to be of any substantial benefit to the justices’ deliberations.
On the other hand, argument from scientists as expert witnesses might be allowed to establish whether or not the science is, indeed, unsettled. My guess is that the burden of proof would shift to the Climatology Cult (a.k.a., “the Respondents”) to establish climate science settledness once OUR SIDE (Go team!) created a rebuttable presumption by producing enough evidence of disagreement among scientists on the issue. Since the Climatology Cult cannot prevail on that issue, for the science is CLEARLY not settled (but, wait-a-minute, hmm, there is Roberts…. with him, you just never know… he might join the 4 Party apparatchik justices (Stevens, Ginsberg, Sotomayor, and Kagan) and hold the “science” to be “settled” in which case, the science “facts” would be part of the argument with OUR side having to prove the “science” doesn’t justify the agency’s rulemaking). That Congress did not mention CO2 specifically would not prevent an argument that it falls within Congressional intent for the Clean Air Act.
“Oh, but, your honor, CO2 IS air,” Ratfink Lye, Counsel for Respondent said, blinking rapidly.
@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly!@ur momisugly
It would be so GREAT if the SCOTUS overruled Mass. v. EPA, but, we really need for Congress to Amend the Clean Air Act to reflect reality (i.e., hard science). Congress also needs to completely re-do the E.S.A. (Endangered Species Act). So long as the Socialists, a.k.a. Democrats, control the Senate AND the Executive Branch, the “White House,” there is only a tiny (but real!) chance that this will be done.
Aaarrgh! Our entire country’s governmental arteries are CLOGGED WITH ENVIRON–AZ– — SOCIALIST SLUDGE!
Almost enough to make me want to move to Texas, almost. Sigh, my lovely state is overrun by pot-smoking ignoramuses, but I LOVE it here.
Janice Moore:
In a peer reviewed article ( http://judithcurry.com/2011/02/15/the-principles-of-reasoning-part-iii-logic-and-climatology/ ) I prove that the methodology of the research underlying the EPA “endangerment” finding was neither logical nor scientific. The methodology was made to look logical and scientific through applications of the equivocation fallacy on the part of climatologists. Through uses of this fallacy, climatologists gull people into reaching improper conclusions about the methodologies of their studies. Under federal law is it OK for an agency to reach a conclusion via a fallacious argument?
The EPA seems to take any change it can at a power grab so it needs to be slapped down. Sorry I meant struck down and buried.
Why did these states do it?
It is obvious for everybody who is a businessman.
If you want to create a business in the US today and need an energy price that will not spiral out of any control, you have a LIST of business friendly states.
Clearly whatever the court says or doesn’t say, these 12 states have sent a very powerful signal towards those who create jobs, wealth and growth.
I am doing busines in Asia right now but if I considered US, I would clearly choose Texas or Florida and in any case absolutely avoid California.
Just a perception from somebody outside of US.
The Feds are the new Nazis.
The unconstitutional regimes are still early in their rampage for the history books, so stay tuned. The fiasco in Iraq was clearly a war crime without the goods, and perhaps a million Iraqis died thanks to us, although I don’t mind the deaths of Saddam and offspring. The fiat money campaigns are now challenged by the states seeking to enforce, “nothing but gold or silver”, but again we’ll see. Gunpoint medicine and socialised medicine are greasing the slide for Boomers as unnecessary eaters in a few years…
John, the administration does have some discretion in enforcement. However, they are still bound by law. The tailoring rule uses the “Step by Step” justification, where first the large quantity generators will be permitted and then the medium, and smaller, and smaller, and then eventually, they will comply with the law as written.
It’s a valid justification, and would be legal, if it wasn’t a complete fiction. Both Obama and the EPA have stated openly and officially that they have no intention of ever taking steps to make the clean air act completely enforced. This would be the same as a police department making official policy to not enforce drug laws, or crimes committed against minorities. It’s effectively rewriting the law, which the administration is not allowed to do.
sceptical says:
April 22, 2013 at 7:57 pm
38 states did not challenge the EPA. Easy to see where the majority of Americans are on this subject.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Maybe those 38 states depend on handouts from the FED and are afraid to speak up. Silence does not “correlate” with agreement. Silence does not tell you what the majority think,
Dear Mr. Oldberg,
Wow! You are an impressively dedicated and intelligent scholar (re: 7:21 AM comment). You are correct in the assertion implied by your question: “Under federal law is it OK for an agency to reach a conclusion via a fallacious argument?” No. It is not okay. Fraud and lying are not okay. BUT, nevertheless, unfortunately, slimeballs like those running the EPA might argue and might persuade a judge that their argument is not based on lies and prevail in court. Disgusting. Sad. But, true. It is amazing to me how MANY (not that any exist, but the large number of occurrences — still NOT the MODE of the judicial data sample, though, I believe, heh, heh) blatantly biased, ideology-driven (as opposed to truth and justice under the law AS WRITTEN and in the spirit intended by the law’s authors), judges there are out there.
Your paper would make excellent evidence (if the court allowed argument on that issue).
So, I agree with you, but, … .
BTW I am honored that someone with your experience and knowledge of the scientific complexity underlying this case would even respond to someone like me who is only speaking to surface-level, strategic, simple, issues. I need FAR MORE to be taught by you, than you by me.
Janice Moore:
Thanks for the kind words.
With the availability of the findings of my research that are reported in my peer reviewed article, fossil fuel producers can prove the endangerment finding to be a consequence from a deceptive argument on the part of certain climatologists. Thus, it makes sense for those who have suffered financial loss as a consequence from this finding to sue these climatologists and their employers for damages. Do you agree? If so, how would we get the ball rolling?
EPA Endagerment finding link:
http://epa.gov/climatechange/Downloads/endangerment/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf#page=16
Just read it, and try not to weep. Did a search for the word “concensus” and did actually have a tear come to my eye.
Michael C. Roberts
Mr. Oldberg,
My reply to you is mysteriously in moderation (perhaps it is because I used the term “slimeballs”? or several times used all caps? I know I didn’t say H*i-t|-r. I just wanted you to know I responded to your very worthy point. Essentially, I agree with you. My speculations likely will prove to be mistaken.
One could make reference to that ‘paper hanger’ who spent 264 days beginning in 1924 at the Landsberg prison dictating his book (“… K a mpf”) to his deputy Rudolf while incarcerated for treason and insurrection ‘committed’ at a ‘beer hall’ and mean quite the same thing …
Maybe. We’ll see. I am going to click “Post Comment” now.
.
Hi, Terry Oldberg,
You’re welcome.
I agree that equity demands that liars (intentional told what they knew or reasonably should have known to be false) should be punished for the damage caused to those who reasonably relied on their lie. Whether or not a LEGAL cause of action for the tort of Fraud (there are 8 or 9 elements and all must be satisfied, including that the plaintiffs did not know nor reasonably should have known what the truth was, i.e., it isn’t enough that the liar lied, but the victim must have reasonably relied and if the victim was negligent in investigating the facts, the liar can get off the hook AND another element is that the liar knew or should have known that the victim would so rely…. well, you get the idea, Fraud is not a simple case to prove) or some other cause of action, exists is not necessarily the case.
My suggestions:
1) contact the Pacific Legal Foundation (website — I’m going to type it using “DOT” for the . so this post won’t go to the spam bin due to this site’s software turning the site name into a url — pacificlegalDOTorg). On home page, click on “About PLF” THEN, click on “Request Legal Assistance”. There is also a phone number local, it appears, to Sacramento, CA at the bottom of the home page. Ask them also about the possibility of a cause of action under the C.P.A. (Consumer Protection Act) — this would be more likely to be a good option if there is a substantial likelihood that more consumers in the future will be harmed by the deception BUT, the liars probably will not be deemed to be acting in the scope of a trade or business, so the CPA would not apply… ANYWAY, just ask the PLF people (you might do a little detective work on who was damaged and what the damages were before calling PLF).
[See the 4/22/13 or 4/23/13 or thereabouts WUWT post re: Pac. Legal helping California farmers sue CA (I think the case was filed as Morningstar ?? v. State of California?)]
2) find out potential plaintiffs for your case, people who have suffered actual, provable, damages due to, i.e., CLEARLY caused by, the above lies, for you cannot sue on their behalf, i.e., an injured party is necessary to satisfy the standing requirement. Ask these folks if they want to contact Pacific Legal for advice and if so, do that together.
Without researching ANY of the relevant law, I’ll just say: Unless the plaintiffs REALLY REALLY want to file a lawsuit and/or Pacific Legal (or another like group of attorneys) is eager to take it on, do not do it. While people often deserve damages, the years of litigation with its distress to you and your family and expense (travel, lost time, etc, even if not legal fees) is, unfortunately, often NOT WORTH IT. Of course, there is the deterrence of future fraud (or whatever you get a conviction on) and that can be worth it. But, sometimes, it is best to just leave punishment up to God and do our best just to publicize the lies and, thus, warn the public. We must carefully pick our battles and, while a noble cause, your fight here might not be worth the agony it would bring into your life. Sorry to be SO discouraging.
Let me end by saying that I think you are SUPER wonderful, Terry O.. You have been gifted not only with an exceptionally fine mind, but with a GREAT heart.
Janice
Janice Moore:
As my stake in federal policy is relatively small, my thinking is that the list of plaintiffs in lawsuits against climatological fraudsters should not include me but should include deep pocketed companies whose investors are seriously disadvantaged by federal policy, including ExxonMobil (oil and natural gas) and Peabody Energy (coal). I’ve written to the upper managements of some of these companies recommending lawsuits without receiving responses from them. Any ideas on how to proceed in enaging the managements of fossil fuel providers in the salvation of their share holders’ equity?
Hey, Jim, heh, heh, how did that go? Did you get tossed into the spam bin?
I just fell in AGAIN! (with my, if they post it, 8:31 PM, 4/23, post — I even was careful to write “DOT” so my citing a website wouldn’t (by the software turning it into a link) send me dooooowwwwwwn — PLUNK! — into the Spam pit. Sigh. It might be simply that my post of 8:31 is just too dang long (I wouldn’t have done that but I wanted to give T.O. a decent answer). Well, I hope that THIS little post makes it.
It did! 8:35 — no “awaiting moderation”! Hurrah!