Will the Supreme Court permit EPA climate decisions to stand?

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

Guest opinion by Paul Driessen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Iggy Slanter

If you like your way of life, you can keep your way of life. Period.
It worked before.

Chad Wozniak

Well said – but one minor nit: “global warming ended in 1997 and continues today” should read “global warming ended in 1997 and the halt in it continues today”.
Since Congress appears unable to put the EPA in its place, if the Supreme Court surrenders to McCarthy & Co. (parallels to Joe, anyone?) the states will have to act. I would recommend that in every red state and every coal state at least, each state government declare the EPA to be a rogue agency and a criminal enterprise, and that their state is no longer subject to its jurisdiction. And then let der Fuehrer and Himmler (Holder) and Eichmann (Holdren) huff and puff and jackass bray all they want to.

[Utility Air Regulatory Group v. Environmental Protection Agency] is the most important energy, economic and environmental case to come before the Court it in decades.
Yes, but it wasn’t argued that way?
Argument recap: Five — the number that counts

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

SCOTUSBlog Summary page: http://www.scotusblog.com/case-files/cases/utility-air-regulatory-group-v-environmental-protection-agency/?wpmp_switcher=desktop
Audio recording: http://www.oyez.org/cases/2010-2019/2013/2013_12_1146

Gary

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

JamesS

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

ugghh

Proud Skeptic

The title of this post is misleading. I was hoping it would give some kind of insight into case law or precedents that would elucidate how the Supreme Court would deal with this…especially in light of the fact that it has already given the EPA the right to classify CO2 as a pollutant.
Instead we get the usual recitation of EPA abuses.
Don’t get me wrong…I am having a hard time these days figuring out what is the difference between the EPA and a dictatorship. They need to be cut off and fast.
Perhaps a new title would be appropriate…one that doesn’t make the potential reader assume that this post contains insights into how the Supreme Court might rule.

“Will the Supreme Court permit EPA climate decisions to stand?”
Stand in front of the 9 members of the Supreme Court. Wait a few seconds and then point out to each of them that they just exhaled CO2 into the atmosphere. Their exhaled breath may have contained as much as 10 times the about 400 parts per million that is in the atmosphere now. All of the plant-life on the planet that use photosynthesis “breathes in” CO2.
CO2 in the atmosphere can not be considered a pollutant?

Quinn the Eskimo

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

MJW

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

For a monumental case giving EPA practically unlimited power to rewrite laws to fit its policy, the arguments seemed rather unfocused:
From about the middle of the summary blog:
“Reading the briefs,” [Justice Kennedy] commented to [US Sol. General] Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.
That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

Alan Robertson

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

pokerguy

“The title of this post is misleading. I was hoping it would give some kind of insight into case law or precedents that would elucidate how the Supreme Court would deal with this…especially in light of the fact that it has already given the EPA the right to classify CO2 as a pollutant.
Instead we get the usual recitation of EPA abuses.”
My thoughts exactly. Valuable post, but should be called what it is. I’d have been much more interested in a reasoned analysis as to how this might ultimately be adjudicated. I’ve read that it looks close, with one Justice (forget which) possibly determining which way it goes.

more soylent green!

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

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

MJW

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

Matthew R Marler

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

john robertson

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

David L. Hagen

See ScotusBlog.com for further documents on the Utility Air Regulatory Group v Environmental Protection Agency SC Docket No. 12-1146, Op Below: D. C. Cir.; Argument: Feb 24, 2014,

JD Ohio

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

B

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

Matthew R Marler

Thanks to Stephen Rasey for the SCOTUSblog link. From there, I eventually got to this, the respondent’s consolidated brief:
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/01/12-1146bsUnitedStates.pdf
There are lots of other briefs, including “amici curiae” briefs. My opinion is that the law is bad, but I don’t see how SCOTUS can rule the way I would like it to rule. I think that it is up to Congress to rewrite the law. I hope I am wrong.

Steve Case

Any yet they drive policy. = And yet they drive policy

Rud Istvan

The appropriate response is not for SCOTUS to opine on a poorly worded CCA, now stretched beyond recognition. Although they may. And would have, I think, sufficient grounds in this specific case turning on narrow and precise issues of statutory interpretation.
It is for Congress to legislate by vote, rather than the EPA to legislate by fiat. This is an election year. And something can be done about the Senate. And then something more could be done about executive over-reach.

JD Ohio

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

Peter Miller

Just over 70 years ago, a notorious German persuaded his parliament to pass an ‘Enabling Act’ to “save the country”.
The EPA today appears to have assumed the same role.
In both instances, not enough people demanded to know the answer to the question: “Save us from what?”
In both instances, the results were/will be the same.

Alan McIntire

“Quinn the Eskimo says:
March 3, 2014 at 1:12 pm
The Solicitor General told the Court that human beings are net neutral w/r/t CO2. Is this correct?”
We CAN’T be net neutral. We animals breathe O2 and breathe out CO2, making us net PRODUCERS of CO2. With only plants, and no animals in the world, there would be a skewing in the O2-CO2 balance towards more O2, less CO2.

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

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

Matthew R Marler

JD Ohio: If the obvious defects of Hansenite science were adequately explained, I think there is a chance that Kennedy could be swung over to reach an opposite conclusion.
Are the justices of the Supreme Court really qualified to overrule the scientific judgment of the EPA scientists? I think that the EPA is wrong in this case, but I do not see how that justifies SCOTUS in overruling EPA. Don’t they have to find fault with the EPA procedure, or find a conflict between the law and other law? I really can’t see the justices signing on to an opinion that says, basically, “We have read on blogs (or in briefs, in a couple Science review articles, whatever) that the evidence is not as solid as EPA claims, etc.”

Matthew R Marler

Stephen Rasey, citing Justice Jackson: despite “all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”
Is there any evidence that EPA violated the law in creating its ruling? What’s the wording of the section of the law that they violated, and what of their actions were in violation?

Pittzer

“Don’t they have to find fault with the EPA procedure, or find a conflict between the law and other law?”
That is the point. The Clean Air Act never put in place any provisions for treating CO2 as a pollutant.

alan mcintire
yes. co2 tax is a tax on human existence ie the air u breathe out. It basically assumes your existence is a ‘pollutant’. So for as long as you live you are a criminal who has to pay.
a monopolists dream -taxing the air u breathe
those who run for fun should pay to do so as they produce more co2 etc. Sounds unbelievable? currently those who want ‘cooked food’ have to pay co2 taxes thro their bills. Those in the usa winter who want to stay alive thro heating have to pay co2 taxes to do so. Basically your existence is a crime against the eco utopian analysis of climate mechanics. The eco utopians want to deindustrialise and they mean to do it thro increasing taxes on anything to do with co2 ie human existence. They are anti human

Gunga Din

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

With all of this talk about what the EPA is attempting to do in the courts in regulating CO2, primarily coal fired utility plants, I think there is a ray of hope.
A few months ago I took up the study of Quantum Mechanics which lead me to what I believe to be some hope for future energy production. Back in 1989 two scientist by the names of Stanley Pons and Martin Fleischmann made a press announcement that was coined as Cold Fusion. Today more commonly referred to as Low Energy Nuclear Reaction (LENR).
Pons and Fleischmann were ridiculed by the science community and made a laughing stock that ended there careers. However, a number of scientist continues the work quietly and things are beginning to blossom in this field. In Italy, we have Andrea Rossi with the Energy Catalyzer (E-Cat) and Robert Godes, Brillouin Energy Corporation here in the US.
http://www.brillouinenergy.com
BEC is developing breakthrough technology that produces large amounts of commercially usable heat energy at a very low cost. In light of this the utility companies have great interest. If the EPA shuts them down, they can retrofit those coal fired plants with this new technology.
All in all, what the EPA is doing to control CO2 emissions maybe a moot point. In the end, a big waste of taxpayers money.
I just love what my dictionary had to say about the word moot, (whether the temperature rise was mainly due to the greenhouse effect was a moot point, having no practical significance).

eyesonu

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

@Matthew R Marler at 2:05 pm
Is there any evidence that EPA violated the law in creating its ruling?
It did. It admits that it did. It’s defense is that it was forced to as to prevent “absurdities.”
From the SCOTUSblog: Argument preview: Curbing greenhouse gases
Here is that question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources.” It should be noted that the question was submitted by the Sol. General, except that SCOTUS changed “correctly” to “permissibly”.
Under the law, the permitting regime for Title I emitting sources would apply to any facility that emitted at least 100 tons and up to 250 tons of pollution a year, depending upon the nature of its operations. Under the Title V permitting regime, the threshold was emission of 100 tons a year.
If EPA followed those requirement to the letter, it found, it would have to spread out its permitting program to cover not just 15,000 facilities, but 6.1 million, costing it $22.5 billion for paperwork, plus billions in compliance costs for covered facilities. Such a regulatory regime, it found, might even reach sources as small and localized as apartment projects, colleges, and hospitals.
Reaching that far, EPA decided, would be ”absurd,” and definitely not what Congress had intended. The EPA, of course, could not change the language of the Clean Air Act; that is Congress’s job. So, claiming administrative necessity, the EPA in June 2010 came up with what is known as the “tailoring rule.”
It interpreted the threshold for applying the permitting regime to plants emitting more than 75,000 or 100,000 tons per year, with a promise to modify the threshold from time to time, as the need arose. It said it was not abandoning the low thresholds Congress had specified, and might some day push the permitting regime down to those levels.

eyesonu

Matthew R Marler says:
March 3, 2014 at 2:05 pm
=============
A more pertinent question would be; What gives the EPA the authority to regulate CO2?

I think I know how the Utility Air case will be decided: BOTH sides will “lose”.
On paper, the EPA will lose. SCOTUS will rule that it is not permissible for EPA to adopt a “tailoring rule” even when administratively necessary to prevent absurdities.
On paper, the plaintiffs win. In reality everyone loses because the EPA will still regulate GHG’s but under the absurd 100 ton threshold. Majority Opinion to be written by Justice Roberts, who has previously shown that the government has no limit to its power through taxation.

Janice Moore

Just some quick thoughts (not intended to be relied upon without independent verification):
1. In the current case before SCOTUS (Supreme Court of the United States): The Question Presented was limited to: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases. UTILITY AIR REGULATORY GROUP V. EPA, 12-1146 (argued, 2014), (decision below: 684 F.3d 102).
2. {From Syllabus of Massachusetts v. EPA (2007)}
“Held: *** The Court attaches considerable significance to EPA’s espoused belief that global climate change must be addressed. Pp. 21–23.“ [from holding, Syllabus at 1. (d)] Massachusetts v. EPA, 549 U.S. 497, 4 (2007).
Comment: Thus, if this belief is shown by current best science to be erroneous, court would logically consider THAT significant in ruling against EPA.
3. “… EPA action on its formation of a “judgment,” that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” [C.A.A. (Clean Air Act)] §7601(a)(1).” Id. at 5.
“The statutory question is whether sufficient information exists for it to make an endangerment finding.” Id.
Comment: This is the crux of the matter: whether now, after CO2 UP – WARMING STOPPED (and given other best atmospheric CO2 science) human CO2 emissions can NOW legally (i.e., per their authority under the Clean Air Act) be judged by the EPA to be “reasonably be anticipated to endanger public health or welfare.” If such a judgment by the EPA is so speculative as to be arbitrary and capricious, then the EPA’s regulation is an ultra vires act and, thus, illegal.
Notes:
(1) TAKE HEART! No matter how SCOTUS rules, Congress can amend the Clean Air Act at any time to specifically prohibit such anti-scientific regulations – it isn’t bound by former Congresses.
(2) Massachusetts v. EPA has lots of dicta within the decision which is not directly on point (that is, not about the issue being decided in that case: standing) and which will be given weight in the case argued in 2014. The holding, however, went only to standing, i.e., whether the Fed. courts have jurisdiction over this case when the State of Mass. is the Petitioner. Thus, as Justice Anthony Kennedy said (per WUWT commenter above), there is no precedent* (i.e., no case law) set by Mass. v. EPA (or any other case) which gives the EPA authority to say that AGW is: A. a threat; or B. a threat which their regulations can reasonably be expected to prevent.
*Even if there were binding precedent, and even though this is not often done, the Supreme Court of the United States can overrule its prior decisions where the underlying facts or state of knowledge have changed significantly. It has been done.
My guess about how SCOTUS will decide? HA, HA, HA, HA, HAAAA.
Given the state of the best science re: AGW and, even more, the clear lack of statutory authority (under Clean Air Act) for the auto-emissions rule, I’d say EPA LOSES.
However…. I also guessed that, given the CLEAR legal case against Obamacare, that Government Medicine would also have lost….. That Roberts is an unpredictable fellow… like the climate of the earth… like the weather in 3 weeks… . Hm. Shrug.
ISN’T LIFE GRAND! #(:))

Janice Moore

“… clear lack of authority for the auto stationary source-emissions rule… .”
{and, given the best science, for the auto-emissions rule, too — but, that question is apparently not going to be addressed at this time by SCOTUS}

With apologies to Robert Duval / Apocalypse Now: I love a good rant in the afternoon. It smells like victory.
Regardless of what the SCOTUS does on this, the game is now on at the state level. The Idaho House introduced a resolution last month nullifying all EPA edicts and authority in Idaho. They will not be the only western or southern state to do so.
http://blogs.idahostatesman.com/house-panel-introduces-bill-to-nullify-epa/
We also have calls for a Convention of the States to Propose Amendments to the US Constitution making their way thru the legislatures of over 30 states that I know of. Alaska is just one.
http://www.legis.state.ak.us/basis/get_bill.asp?session=28&bill=HJR022
Finally, the ability to act lawlessly does not reside exclusively with this regime. If they can ignore everything, so can everyone else.
The Laws of Physics also apply the political world. An action will get a reaction. But since it is a non-linear system, that reaction is not necessarily opposite in direction or equal in magnitude. And these clowns have pushed a lot over the last few years. Cheers –

Doug Badgero

This issue is much bigger than AGW or climate science. The question before the court is if the executive can rewrite the laws approved by the legislature. SCOTUS must find in favor of the UARG. Any other decision would gut the separation of powers defined by the Constitution. EPA must regulate as the CAA specifies or not regulate at all.
My guess is that this will force the Congress to remove the ability to regulate CO2 under the CAA.

p@ Dolan

It’s been said that in recent history (since WWII), especially since the ’70s, SCOTUS spends more time deciding how to justify the acts of the Legislative Branch then they do acting as a co-equal branch of Government which helps decide the course our nation steers. There is much to this argument; witness the atrocious decision in Kelo v. City of New London, or the Roberts written decision regarding the Affordable Care Act (Obamacare).
However, some things to consider: Environmental law is littered with decisions. Since the ’70s, perhaps even more than 1st Amendment jurisprudence. Yet there is no precedent for what the EPA has done which the Solicitor General can cite, and it was Justice Kennedy (who since the retirement of Associate Justice Sandra Day O’Connor, has appeared to have taken the position as Swing Vote on the bench) who pointed this out.
The Court has been very deferential to the Legislature. I believe the most powerful argument has been that the EPA has derogated to themselves powers they do not have, usurping the power to Legislate. Furthermore, these regulations in many cases take the appearance of taxation, from a certain perspective (fines for operating are a tax for not being able to meet a certain arbitrary criteria set not by Congress, but by the EPA. If the fines meet the test for being a “tax”—recall the Roberts decision, which stated that what those who passed Obamacare had been denying: that the penalties were “Taxes”. Though they’re still referred to as “fines”, they are collected by the IRS, and the Roberts Court declared they were a tax, and Congress, in the first Article of the Constitution, is granted the power to tax—then the Court may indeed be moved to act against the EPA, as these would be taxes which did NOT originate in the Legislature, specifically in the House of Representatives.
There is no real precedent for this action on the part of the EPA. Certainly the Constitution is clear that the Executive Branch may not simply levy taxation. So some justification would have to be created.
The decision clearly hinges on whether or not the Court decides that Congress intended to allow the EPA the power to update and re-write standards, and what limitations, if any, were placed on that power. For example, the argument may be made by the government that the changes were based on scientific research and reflect a better understanding of the issues which were the basis of creating the EPA in the first place, and as such do not constitute a change to what Congress intended, but a refinement of the charter they received when the agency was created. In fact, I expect that argument to be made, if/as/when it’s required. The argument has been made that they’re rogue; they’ll try to torture logic to prove that’s not so.
The Left-leaning justices may well wish to support left causes; but they understand too well the weapon they would be handing to whichever party controlled the White House—which might not be people friendly to their liberal causes some day—should they decide to hand that carte blanche to the EPA.
I expect them to try to find some middle way which allows the EPA’s current policies to stand with a justification that goes something like: because Congress’ guidance, issued so long ago when the EPA was first created, isn’t adequate in our modern age with decades of discoveries behind us about the very things the EPA was created to deal with, and time and discovery have, in effect, created latitude for the EPA to act where previously, there wasn’t information enough to do so, they EPA has, understandably, had to refine and change regulations to meet their mission.
To put that into some kind of context, consider the FCC regulating the electromagnetic spectrum usage in the US. Go back to the 1950s, and they weren’t regulating frequencies in the X/ka bands, because no one had equipment to use those bands yet. But as microwave towers went up across the US, and Commercial Satellites went into use, higher and higher frequencies had to be regulated. That the FCC would regulate those like lower frequencies was a natural expansion of existing power.
Not that I believe most of the EPAs regulatory excursions are as smooth and logical as my example, nor those of many other government bureaus; mission creep is a very real phenomenon. But certainly their mission creep at EPA has been a steady, incremental thing. Though changes have certainly been much bolder under successive presidents as each Administration seems to play Can-you-top-this with the last, it’s not like they got where they are overnight. People have been complaining about EPA and government overreach for decades; until now, as far as I can recall, mostly they’d been those evil “corporations” and got little sympathy. Until the predations of the EPA got so bad that the costs the corporations passed on to consumers got painful enough. Some folks have been fighting this fight for decades…where was everyone else then? But I digress…
Expect a decision crafted to put the EPA on notice that they do not have carte blanche; to continue the precedence of being deferential to Congress; to inform all parties that Congress is free to modify the EPA’s charter and indeed is responsible to do so; and to wash their hands of things without altering status quo too much: without giving whomever gains the White House next too sweeping a power—because they know only too well what may happen if a group of, say, far-right-leaning Conservatives gets control next—and without making anyone very happy about how it all worked out, no matter which side they’re on.
Further than that, my crystal ball don’t go.
I’d like to think they’ll go completely against the Administration, which would the the right thing to do. But I’m not holding my breath.

MarkG

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

geran

Our “justice” system is corrupt.
You can predict the answer knowing that.

Janice Moore

Hey, GERAN!
Good to see you, ol’ excitable buddy ol’ pal, you. #(;))
How have you been?
Janice
*****************
@ P@t — Sorry we were at contre temps last time we passed, port to port… . Hope you are enjoying a peaceful evening on your lovely boat. J.

Janice Moore

Oops, better (ahem) re-word that…
Hey, G-e-r-a-n! How are you doing, ol’ excitable buddy ol’ pal, you?
Janice
*********************************
@ P@t — Sorry we were at contre temps the last time we passed … port to port (or rum to Coke… — NOT K–ch (ouch!)) …. . Hope you are enjoying a gently peaceful evening of light airs and calm seas on your stalwart floating home. J.
[The mods do not want to see Janice zigzagging ANY boat rumming to port, Coke, or starboard, in clam seas nor contra temps. Mod]

p@ Dolan

@Janice Moore (risking the wrath of Mod):
Under the weather (not water) and 5 inches of snow, contemplating SCOTUS impacts on EPA operations, and my inevitable return to work in the am..! Been a trying month or two…
7;->

Janice Moore

Oh, Mod (smile, smile, smile). You are sooo punny.
#(:))
I will try to be more tackful.
ha, ha, ha, ha, haaaaaa

Proud Skeptic

“The Supreme Court ruled before that the EPA can regulate CO2 under the law known as the Clean Air Act if it is a pollutant. It did not rule that CO2 actually is a pollutant.
Unless it has been repealed, there is also a law that says the EPA must base it’s regulations on actual, sound science. “Secret science” doesn’t fill the bill.”
Thanks, this is an important fine point. However…they have already identified it as a pollutant based on their preferred science. So it IS a pollutant under the law. I have my doubts that the Supreme Court will get involved in the science.
This is the natural evolution of government agencies. They gather power unto themselves and eventually a corrupt executive branch decides to use this to his benefit.
We are screwed.

p@ Dolan

@ MarkG says:
March 3, 2014 at 5:04 pm
“Wouldn’t a better question be: where the heck does the Constitution authorize an ‘Environmental Protection Agency’ in the first place?”
At the end of Article 1, Section 8: Congress has the power “To make all laws which shall be necessary and proper for carrying into Execution” i.e., the duty of the Executive branch to manage, “the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or Department or Officer thereof.” No where does it say Congress must create “departments” but it’s assumed there will be departments; of the Navy and an Army, if created—none existed at the time, and standing armies were anathema to the Founders—in the text of the Constitution itself.
Article 2, Section 2, second paragraph, the President “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties…” The Advice and Consent clause goes on about treaties, appointing ambassadors, etc., and near the end, “but the Congress may by Law vvest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Again, departments there will be. Congress gets to decide how they want to play the role of Advice and Consent for much of it, and now, by tradition and dint of many years of precedent, big department heads, like Cabinet members or big enough agency heads, must be approved by Senate, while more minor appointments, like the President’s Chief of Staff, are his alone, and under, under, under assistant to the assistant secretary’s assistant are appointed by members of the various departments and no one notices.
Creating a new Department…history: Congress passed a law “organizing a department of energy” and Carter signed it into law. Essentially, he was given a new task to execute.
What is at question here is whether or not the EPA has overstepped its mission, and infringed on the powers delegated in Article 1 of the Constitution to the Legislature. As the EPA is an agency of the Executive, that’s why the separation of powers argument.

Larry in Texas

Stephen Rasey says:
March 3, 2014 at 1:15 pm
Proud Skeptic says:
March 3, 2014 at 6:47 pm
While Justice Kennedy’s questions of the Solicitor General give me a little hope, it is only a little. This is because the standard of review for administrative rule-making at the Federal level – the “substantial evidence” rule – is ABYSMALLY inadequate, abysmally low. Congress needs to do something about that, because EPA can act like the blind squirrel that finds the acorn, and that would, in the Supreme Court’s opinion, be enough to sustain it. Which is terrible, of course, but courts have never wanted to get into science. Us lawyers, unfortunately, aren’t generally well-educated enough to engage in the kind of evaluation of the science of climate change that we see here at this website. And Anthony, I thank you with enthusiasm for the excellent science education your website provides on an ongoing basis to a scientific nincompoop like myself.