EPA to be challenged at SCOTUS over climate change

LeeHarvey says:
October 15, 2013 at 10:45 am
…
No… they’re among his most naked attempts to pander to the Democrat Party base.
I’d go one further and quote the politician (whose name I cannot remember) in saying that the reason is the way it will generate the largest revenue stream ever for government.

SCOTUS should take a mulligan on Massachusetts v. EPA and overturn it.

If I was crazy I would look at how Europe has been wrecking their economies with stupid decisions based on the nefarious AGW scheme and look at how Obama is trying to establish the similar economy wrecking mechanisms and wonder who is pulling the strings of these idiots to wreck the western world’s power. Maybe China has perfected a form of mind control or then again maybe some people are just stupid money and power grabbers.

From several paragraphs in one amicus brief:
“Finally Massachusetts gives rise to a highly unorthodox consequence: climate change regulation on demand. One endangerment finding having been made, it is hard to see on the theory of EPA and the court below how EPA could decline to regulate in response to pending petitions for greenhouse gas controls from sea to shining sea. The construction of a nationwide regulatory system of unprecedented proportions ought to be left to Congress, not to an agency’s extra statutory, unguided improvisation. ”
Could not agree more.

I’m afraid Lance Wallace has it right. The difficulty here is that the court routinely defers to the “expert agency” and won’t question the phony science, which is how Massachusetts v. EPA got decided in the agency’s favor. Unless five justices can find some way in which the agency exceeded its authority, its war on carbon will be allowed to proceed.

jorgekafkazar says:
October 15, 2013 at 10:55 am
Nine people stand between America and destruction of the Constitution. Who will not cave in, that’s the question.
AMEN! The only cap needed is over D.C.

Clearly, the EPA has jurisdiction over the Supreme Court justices.
Each of them is a “mobile source” of CO2.

…N2 and O2 will be next…then the dreaded dihydrogen monoxide! If the logic is pursued, then the case should be made that anything exhausting should be taxed and regulated. It’s always ok, as long as it is taxed and regulated. Same stream of logic.

I would have preferred the EPA to be questioned on its findings that CO2 is a pollutant in the first place. They claim they have evidence – let’s see it. It’s amazing that no one can ever find that evidence.

The case at hand is about the charter of the EPA when it was first created, and if this charter is violated by regulation of CO2 from stationary sources. Mobile sources such as autos are certainly in the charter. Stationary sources such as power plants are arguably not. “The justices limited their consideration of the new case to one question: whether EPA’s regulation of motor vehicle emissions triggers new permitting requirements for stationary sources as well, such as power plants. Opponents had mounted a broader challenge to all EPA regulations of greenhouse gases.” The cases have been combined off of Texas v. EPA http://www.oag.state.tx.us/newspubs/releases/2013/041913_texas_v_epa.pdf

I believe it may be called a tailoring rule. I’m not certain, offhand, but the EPA is required to regulate any ‘pollutant’ over a certain specified quantity. The Obama administration, in having the EPA regulate CO2 as a pollutant, would be required by law (not to say they’ve respected that concept in the past) to regulate it far below what EPA is actually willing to. The EPA, under Obama, intended to only go after power plants and large scale industrial emitters by reinterpreting the tailoring rule, but by law, they’re required to go after much smaller sources such as schools, hospitals, even bakeries, if they’re willing to call out CO2 as a pollutant. Let’s see if the SCOTUS holds them to the letter of the law. They should because from a legal standpoint there’s technically no way around it. Then you’ll hear howls of protest from all its supporters when they too, face the absurdities of this administration.

“Nine people stand between America and destruction of the Constitution. Who will not cave in, that’s the question.” — jorge
Not the one of which is sober or familiar with a dictionary.

Jquip says:
October 15, 2013 at 11:44 am
..had O2 been regulated by the EPA and upheld by science court … Gus would have been the first man on the moon…breathing… er ah….standby…adjusting my O2 flow….

Tom,
they will not hear argument on the 2007 case. Only whether EPA is operating outside the boundaries of that decision.

I suspect the political wind is in favor of more disastrous legislation followed by disastrous bureaucratic rules followed by disastrous fees followed by disastrous economic strife. The political wonks will point to, accuse, and detract from the real disaster…politics as usual.

I”’m afraid Lance Wallace has it right. The difficulty here is that the court routinely defers to the “expert agency” and won’t question the phony science, which is how Massachusetts v. EPA got decided in the agency’s favor”
If so clear cut, why did they agree to hear the case? Don’t know much about the workings of the Supreme Court though.

@ jorgekafkazar at 10:55 am,
There are not nine people standing between America and destruction, there is merely one.
Massachusetts v EPA was decided 5-4, with the liberal Justices in favor while the conservatives opposed. Justice Kennedy provided the deciding vote.

pokerguy: “… routinely defers to the “expert agency” and won’t question the phony science, ”
Sure, doing so would put to much strain on the credibility of the institution itself. For example, that it took the people and States together to delegate legislative authority to the US Congress. But that the US Congress has, and has been allowed by the Judiciary, to simply abrogate that authority and hand it out to every random Joe Sixpack. The right sort of well-bred Joe Sixpacks, mind. The Judiciary would hardly suffer it if Congress handed out the legislative power to every guy with a mullet and Camaro.
And the attendant problem that laws are supposed to be Necessary and Proper to carrying out Congress’ permitted powers. But the Judiciary can’t acknowledge that they’ve defined ‘Necessary and Proper’ as ‘because.’ Or, as it stands right now, you couldn’t randomly rip half the pages out of the Federal Register and fail to remove one thing specified in the Constitution.
At this point, the only cover they have left is the same one Congress has been using. Shift the burden and blame to someone else. So when people complain they can take an Alfred E. Neuman stance of “What, me worry? They’re experts.” And when it all goes sideways they can blame the experts for the Judiciary failing to exhibit any competency at their job.

That is a very narrow question. This is an obscure legal procedural technical issue and not anything of substance. If the EPA loses it will simply make a separate finding about power plants – easily defensible since CO2 molocules don’t know where they came from and it has already declared CO2 to be harmful when emitted from cars.

It’s a propaganda stunt to remind people who are the “good” and who are the “evil”.

Let’s clear one thing up. The Supreme Court NEVER ruled CO2 is a pollutant. The court ruled the EPA had the power to regulate CO2 under the Clean Air Act — if the EPA desired to do so. The court did not order the EPA to regulate CO2.

Tim Walker says:
October 15, 2013 at 10:58 am
If I was crazy I would look at how Europe has been wrecking their economies with stupid decisions based on the nefarious AGW scheme and look at how Obama is trying to establish the similar economy wrecking mechanisms and wonder who is pulling the strings of these idiots to wreck the western world’s power. Maybe China has perfected a form of mind control or then again maybe some people are just stupid money and power grabbers.

One of the many dirty little secrets plebes and proles like us aren’t supposed to know is the American economy used to be the envy of the European national leaders. They would have killed to have our economic growth, our tax base, our unemployment levels. But instead of bringing them up to our standards, we have brought ourselves down to theirs.
This is no accident. The cabal in power doesn’t believe in American exceptionalism, they don’t want America to stand above any other nation. They want a multi-polar world and they think it’s fundamentally unfair that our people have it so good while so many others aren’t as well off.
I’m torn between conflicting beliefs. Is Obama deliberately destroying the economy or is he just clueless?*
* Technically, this isn’t really an either/or question. These progressives are enamored with theory and ideology. Reality and results don’t get past the pinko-colored glasses they’re looking through.

“The Clean Air Act, which was last amended in 1990, requires EPA to set National Ambient Air Quality Standards (40 CFR part 50) for pollutants considered harmful to public health and the environment. The Clean Air Act established two types of national air quality standards. Primary standards set limits to protect public health, including the health of “sensitive” populations such as asthmatics, children, and the elderly. Secondary standards set limits to protect public welfare, including protection against decreased visibility, damage to animals, crops, vegetation, and buildings.” (http://www.epa.gov/air/criteria.html)
The US Supreme Court ruled in April, 2007 that EPA had the authority to regulate the emissions of CO2 and other greenhouse gases under the Clean Air Act of 1970, as amended. The Supreme Court decision was based on the potential endangerment which could be caused by climate change driven by CO2 and other GHG emissions, rather than on direct human endangerment resulting from exposure to these gases.
EPA issued an Endangerment Finding regarding greenhouse gases in December, 2009. (http://www.epa.gov/climatechange/endangerment.html) The language reproduced above states that EPA must now set an NAAQS for CO2 as well as the other listed greenhouse gases. The contemporaneous EPA Cause or Contribute Finding was limited to new motor vehicles, though they are obviously not the only sources of CO2 and other GHG emissions of concern. For example, the UN Food and Agriculture Organization (UN FAO) has determined that “the livestock sector generates more greenhouse gas emissions as measured in CO2 equivalent – 18 percent – than transport.” (http://www.fao.org/newsroom/en/news/2006/1000448/index.html)
EPA has already been petitioned to set the NAAQS for CO2 at 350 ppm. (http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Petition_GHG_pollution_cap_12-2-2009.pdf) Dr. James Hansen of NASA-GISS and others assert that 350 ppm is the maximum safe atmospheric concentration of CO2. This assertion is based on the outputs of climate models, rather than on any rigorous experimental demonstration of endangerment. EPA could elect to set the NAAQS at some other atmospheric concentration.
Fortunately, the NAAQS process includes an “escape hatch” for exceedances resulting from “pollution” from non-state sources, including non-US sources such as China and India. Unfortunately, each US state would have to comply with the NAAQS, with the exception of “pollution” from non-state sources, even in the face of continuing increases in emissions from those non-state sources.
An NAAQS set at 350 ppm would arguably require not only the total elimination of CO2 emissions by each US state, but also the installation of facilities deemed capable of reducing atmospheric CO2 concentrations by ~40 ppm below current levels during the compliance period. Presumably, the capacity of the US facilities to remove existing CO2 from the atmosphere would be limited to the capacity to remove CO2 from “state sources”.
Historic NAAQS compliance periods have been less than 10 years. A similar compliance period for CO2 would make the “83% by 2050″ touted by the Obama Administration pale in comparison. This would be the case, not only because the required investments would have to be made over an extremely compressed time frame, but also because many potential technologies, which might have become economically viable both for producing energy without CO2 emissions and for removing CO2 from the atmosphere, would likely not be commercially available during the dramatically shortened compliance time frame.
Regardless, absent a dramatic change of course by the developing world, the actual atmospheric concentration of CO2 would continue to increase, though arguably at a somewhat slower rate than would otherwise have occurred. That means that an NAAQS set at 350 ppm could not possibly be achieved in reality without rapid and coordinated action by all of the nations of the globe to both halt current emissions and to install and operate facilities to remove CO2 already in the atmosphere. The discussions at COP 15 in Copenhagen in December, 2009 suggest that such action is highly unlikely, absent some cataclysmic event(s).
The International Energy Agency (IEA) has estimated that the investment required to stabilize atmospheric carbon concentrations at ~450 ppm by 2050 would be ~$45 trillion over and above the business as usual scenario; and, could be more than double that amount if technology advances do not occur as rapidly as they project. (http://www.iea.org/techno/etp/fact_sheet_ETP2008.pdf) The investments required to stabilize atmospheric carbon concentrations at ~350 ppm by 2050 are not estimated, but would certainly be more than $100 trillion, since the emissions reductions required would double and additional investments would be required to remove carbon already in the atmosphere. A dramatically shortened compliance time frame would increase these investments significantly.
I remain convinced that the ultimate intent of the AGW CO2 “mitigation” effort is the total elimination of anthropogenic carbon emissions. Should EPA actually establish an NAAQS for carbon dioxide at a concentration at or below ~400 ppm, that intent would be confirmed; and, the timeframe for compliance would be dramatically shortened compared with the timeframes contemplated in the various House and Senate bills proposed in the US.
The FACT that the atmospheric concentration would not actually be stabilized at that level, since accomplishing that is clearly beyond the capability of the US, would have no bearing on EPA’s enforcement of the NAAQS. The only advantage of an NAAQS which is clearly unachievable in reality would be its susceptibility to being overturned by the courts, which still appear to retain the ability, if not the willingness, to separate fantasy from reality.

more solyent green — “The court did not order the EPA to regulate CO2.”
Strictly true, sure. But that’s the blame game. Congress pushes it on the Executive. The Executive pushes it on the Judiciary. The Judiciary pushes it on scientists. And scientists can’t push it on reality, as reality pushes right back. So they push it on manufactured reality produced by people jiggering the instruments. Stating all the while that “Science cannot be denied!”
If and when that comes for a reckoning the instrument jiggerers state: “Science is never right or wrong as such. It is a self-correcting process that attempt to better approximate reality by jiggering instruments. Every fool knows this as they were taught this in the government curricula in government schools.” Pushing it onto the teachers.
The teachers take hearty note and blame the voters for being too ignorant to make an informed choice about the better candidate. And suggest that if you wish to make better choices, perhaps you should learn something. Have you tried attending a government university?
It’s all enough to get a face palm out of Kafka’s corpse.

Let’s hope that those legal savants don’t decide that H2O is also a dangerous GHG, even more powerful and scary than that evil CO2, and needs to be regulated by the EPA, sequestered, taxed, etc.

The EPA, under the direction of the Obama administration, seeks to regulate CO2 under the provisions of the Clean Air Act. One of the original authors of that act, John Dingel, congressional rep. from Michigan, stated quite clearly, after the EPA indicated its intention to regulate CO2 as a pollutant, that the CAA was never intended for that kind of purpose. That’s the potential straw that breaks the EPA’s camel’s back if its opponents are willing to hold their noses and use it.
I’m not certain what the maximum volume of a pollutant is before the CAA
kicks in and the EPA is required to regulate it. Just for sake of argument let me speculate that it’s 25 tons. Now CO2 is not really a pollutant in the classic sense of the word so that 25 tons (?) proves to be a very low threshold to hold it to. That is the Achilles heel for the EPA: Heck, animal life releases more CO2 in toto than industry. Because the 25 ton (?) threshold – as required by law in the CAA – would’ve been so onerous it would’ve forced the EPA to regulate, literally, thousands if not tens of thousands of sources (including office buildings, farms, schools, hospitals, churches, and so on), the EPA chose to rewrite the law, calling it, I believe, the EPA’s tailoring rule. They tailored the law to only restrict sources exceeding – I’m speculating here again – 250 tons annually, which only would’ve involved large industrial sources such as coal fueled power plants and others.
From a legal standpoint that is, as stated, the Achilles heel for the EPA. They can enforce a law written by Congress, they can interpret it, but they CAN’T REWRITE IT. That should be the principal argument before the SCOTUS. Federal agencies are not allowed to legislate: In our Constitutional system only elected representatives are.
It sounds counter productive: arguing that the EPA is not sufficiently enforcing their own onerous interpretation of a law but that’s how you strike the stake through its heart, and the legal argument is solid. For the EPA to selectively enforce its interpretation of the Clean Air Act is not only illegal, it’s discriminatory. It must be argued that they must enforce the 25 ton (?) rule.
Think about that. The NCAR’s computer facility in Wyoming will probably get clobbered; Hollywood will get hit hard; I’ll bet even some of those mansions won’t be in compliance; Oprah can relinquish her private jet; Travolta can relinquish all five of his; Obama’s campaign VoiceOver, Morgan Freeman, can say goodbye to his too; Gore can give up the highlife; Air Force One can fall under scrutiny particularly in regards to its Bermuda, Idaho, and Hawaii vacation use; the DOE can reconsider its 15,000 vehicles; and the schools that teach AGW can learn the true ABC’s of AGW; the Universities can learn their’s too. The list is endless. And it’s exactly the kind of tactic Obama, having learned from his community organizing days, is well versed at. Make your opponent live by his very own creed, and watch them howl when they have to. That’s how you defeat them – with the very own trump cards they’ve given you. A lowly two can beat an Ace. The EPA’s deliberately letting them off the hook. Draw your trump – pull their Ace.

READ AGENDA 21 that is all you have to do.

Whatever method was used to get Roberts to agree that a fine is a tax, and a tax originating in the Senate is legal, will be the same method to get Roberts to agree that we are heading into world catastrophe, that the earth will melt in 100 years, and the EPA has carte blanche to do what it wants.

Seems to me its not about what the Supreme Court says, as much as the extent the Supreme Being will listen and abide by it. There are many routes around a stubborn root, even if that root is known as freedom. One way or the other, US EPA will have its way over the rest of us.

Tom J: “From a legal standpoint that is, as stated, the Achilles heel for the EPA.”
From a logical standpoint. From a legal standpoint you can get away with anything as long as you hide your sophistries behind enough poetry about penumbras emanating from a contradiction. Or a thorough trip through the Humpty Dumpster redefining words.
But the real trick is to start with a sophistry as the premises and then extend it with further sophistries to the conclusion. Keeps the uncritical or motivated well in the land of Oz. The both of whom are convinced that clear thinkers are completely daft when the original sophistries are pointed out. After all, it’s settled law.

Everard: “I would like more people right across the board to ask for evidence.”
They’ve been asking, and the evidence is routinely shown. That is, the sheep knuckles thrown by the ensemble mean of the models. Now we can be a bit Neanderthal and state that it should be empirically demonstrated utility and validity of the fortune telling all we like.
But that’s not part of practical science anymore. And really cannot be unless you’re willing to discard a huge numbers of theories and research subjects. Which is, perhaps, the greatest ignorance in wedding the law to science. When philosophers of science state that unproven and unprovable, even unmeasurable, notions are science if scientists simply like the notion. (Formalized by Popper, but goes back earlier.) then ‘science’ is completely indistinguishable from Random Religion A. It’s a bunch of people that like some idea, but aren’t terribly concerned with that whole ‘proof’ idea.

“Maybe China has perfected a form of mind control…”
“Manchurian Candidate” starring Frank Sinatra & Lawrence Harvey.
The movie was banned from being shown on TV for many years, after JFK’s assassination.

“Activism via regulation. IMHO”
When you’re talking about law, punishment and sin taxes, based on anti-empirical notions of virtue, vice, and various apocalyptic scenarios? You’re talking about the establishment of a state religion by some no name department housed in the broom closet next to the boys room.

OssQss says:
“The EPA is not elected. They don’t get their approvals via congress for new regulations that I know of… They answer to nobody but the courts on policy and regulations. They are currently implementing a form of cap and trade that is pushing up energy costs via a pollution status of CO2 ,essentially on their own as directed by the Whitehouse.
Activism via regulation. IMHO”
I’m aware, but if they lost then Obama would try to push the regulation through Congress where it would be legal.

Does anyone remember seeing this?
He is honest in this example, for once.
http://youtu.be/HlTxGHn4sH4

See the amicus curiae brief for the plaintiffs in the suit against the EPA at the CFACT website.
@more soylent green –
Obama isn’t clueless – he IS setting out deliberately to destroy the economy.
Obama is determined to establish a one-party dictatorship and crush the Republican Party altogether. This is why he is being so stubborn about Obamacare – it’s a crucial part of the infrastructure he intends to use to exercise dictatorial powers (the other legs of this are the IRS, NSA and EPA). It also explains his war on coal and on cheap energy in general. As others here have pointed out, controlling carbon is controlling every detail of people’s lives
Obama often comes across as an airhead, but that’s part of his strategy, to lull opponents into thinking he’s weak. Hitler thought and operated the same way. Obama’s tactics closely parallel Hitler’s: lying shamelessly and repeatedly; intimidating political opponents, making law without the legislature; manipulating elections (intimidation by his IRS against the Tea Party is what “won” him the 2012 election); creating an artificial crisis – the government shutdown, much like Hitler’s Reichstag fire; and ordering people killed without trial (four American terror suspects and several of their family members, including children, executed by drone strikes).
Obama, like Hitler, is driven by deep-seated hatreds and similarly lacks inhibitions concerning acting on those hatreds. His creed is Jeremiah Wright’s “God damn America,” and he is acting on it. He knows full well that his agenda will destroy the country, and that is exactly what he wants.
The loss of jobs and working hours due to Obamacare is NOT an unintended consequence – it was foreseen and calculated, and is a key part of Obama’s scheme to destroy the middle class, to reduce it to poverty and dependency. Another part of this is the grossly excessive premiums (which actually are mostly taxes, not going to care providers) and deductibles in Obamacare, which will take huge bites out of people’s incomes.
And of course there is his energy policy – the sky-high electricity prices he boasts of achieving, and high energy costs generally, will reduce many from middle class to poor, both directly and by killing millions of jobs. He throws his billionaire crony capitalist buddies like George Soros and Jeffrey Immelt the bones of profiting from “renewable” energy, just as Hitler let Krupp and I.G.Farben keep their monopolies in Germany.
If he isn’t stopped I believe it is possible that Obama may soon do things like issuing executive orders to shut down Fox News, the climate skeptic blogs like WUWT, and other dissidents. I believe he might attempt to cancel the 2014 elections and declare himself president for life, like Chavez did in Venezuela. He is certain to have studied closely what Chavez did. And it is clear to me that neither the courts – especially the Supreme Court – nor Congress have the will to put a stop to him.
I hope like hell that I’m wrong about all of this.

Here is a reprint of my mock interview with (former) Energy Secretary Steven Chu:
Tongue in cheek, but I think it captures the essence . . . .
WOZNIAK: Mr. Secretary, how will your proposal to raise gasoline prices to $10 a gallon benefit low-income Americans?
CHU: It will save the planet for their grandchildren.
WOZNIAK: But Mr. Secretary, a lot of low-income people are raising their grandchildren right now and just barely getting by. If these grandparents have to pay so much for gasoline, how will they be able to afford to feed their grandchildren and heat and light their homes?
CHU: Uh, the price of eggs in China is the important issue here. It’s been going up because of global warming.
WOZNIAK: Mr. Secretary, please answer the question.
CHU: I did, and you are out of order.
About says it, methinks – Moniz is no different.

Those who want the courts to adjudicate on scientific arguments should be careful what they wish for. Your average judge is scientifically illiterate. It would not be a good precedent at all. What’s more, you can’t get rid of them at the next election.
The lower courts have only ruled on the legal powers of the EPA, not the substance of their actions. If the EPA breaches its own rules in how it makes decisions, that is a legitimate matter for them to rule on, but the substance of the decisions is rightly a matter for the EPA and the legislature.
The only way for the EPA to be reined in is for the legislature to revisit the enabling legislation. Their unwillingness to do so is the real problem here.

Chad Wozniak says:
October 15, 2013 at 8:41 pm
=================
Dude …… put the cap back on the glue. FFS

One of CFSCT’s three main argument points in its amicus brief is:

“EPA Impermissibly Failed To Consider The Adverse Impacts That Its Endangerment Decision And Greenhouse Gas Regulations Will Have On Human Health And Welfare, And On Wildlife And The Environment. ”

This is the issue of failure to do a complete benefit-to-risk assessment; failure to do both risk evaluations and benefit evaluations. The EPA only looked at benefits of restricting CO2 emission from fossil fuel use. This mirrors the IPCC only looking at the risks of not restricting CO2 . Two sides of the same ideological coin used by the activist CAGW movement. The ideological coin has a false ‘a prior’ premise that burning CO2 must be a net harm to the point of eventually being dangerous.
CFACT is presenting a good point to the SCOTUS. I can only see it bearing on a potential SCOTUS concern that such failure to evaluate risks of restricting CO2 means the EPA actions have been the result of a fundamental lack of constitutionally required congressional oversight on such government bodies. By oversight I mean direct explicit hands-on oversight.
Why did SCOTUS decide to take the case? That is the most important question to me. Is taking this case a warning flare that signals to BIG government proponents that things have gone too far? I do not know.
John

@Chad Wozniak says: October 15, 2013 at 8:41 pm
I really agree with you. How could anybody be that clueless? Just look at his background. Who were his fellow travelers during college and beyond. Marxists, communists, and various other assorted radicals — socialists all. You can tell a lot about a man by the company who chooses to keep and those he seeks out as friends.
We have a dangerous radical in the White House and we should all be very, very afraid.

John Whitman says:
October 16, 2013 at 7:45 am
This is the issue of failure to do a complete benefit-to-risk assessment; failure to do both risk evaluations and benefit evaluations. The EPA only looked at benefits of restricting CO2 emission from fossil fuel use. This mirrors the IPCC only looking at the risks of not restricting CO2 . Two sides of the same ideological coin used by the activist CAGW movement. The ideological coin has a false ‘a prior’ premise that burning CO2 must be a net harm to the point of eventually being dangerous.

This is what I was thinking.
Does anyone think that a “50 to 1 Project” type of analysis can be used in this case? Seriously, it seems like someone can generate some economic risk numbers associated with restricting CO2. Maybe the economic costs that Germany is now experiencing in having to reverse their trend of their energy infrastructure?