Ah, forgotten records, including the musings of poet Allen Ginsburg, provide a secret decoder ring to interpreting the Clean Air Act. This is not, of course, how one interprets statutes.
For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]
How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Recent court opinions seem to take the stance that congress hasn’t legislated thoroughly and accurately, and now have crippled the chevron doctrine saying it should be in their hands.
There’s parallels here with software development, I think. It’s easy to come up with a basic system that works as intended but is not robust to failure. It’s extremely hard to near impossible to be both succinct, correct, and robust to failure. You also wouldn’t expect the PMs to be responsible for the implementation.
Of course, many lawmakers are happy to outsource the coding to special interests.
One option would be to just have fewer federal laws altogether, and devolve most authority back to the several states. The federal government was only able to assume many of it's current powers due to a series of Supreme Court decisions that allowed Congress to use the Commerce Clause to legislate on issues only loosely connected to interstate commerce. Those precedents can be overturned.
Decentralized, peer-to-peer systems tend to be pretty robust. Even if a few states "fail" the others will be fine.
> How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.
> extremely hard to near impossible to be both succinct, correct, and robust to failure.
It depends on the size of the overall system. The smaller the system the easier this is to achieve.
> many lawmakers are happy to outsource the coding to special interests.
In and of itself, this is actually a good thing, as you point out:
> You also wouldn’t expect the PMs to be responsible for the implementation.
So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto any legislation that hasn't passed with a super majority.
The Major Questions Doctrine is just a way for the Court to reject a reading of a statute even it agrees is supported by the plain text. It a statute gives an agency broad authority, the agency should have broad authority, and if Congress doesn't like it, it can claw it back. All the Supreme Court did in the EPA cases was insert its own policy preferences for that of the elected branches by inventing a notion that a statute needs to be super-duper extra clear if agencies want to do something businesses don't like. Bravo for helping convince the Court to adopt this intellectually bankrupt framework.
Comments like this, where someone who is directly involved and deeply knowledgable, randomly jumps in are why I love HN.
People are so fixated on a result (in this case lowering CO2 emissions) that they can't see past that to consider the actual fundamental legal principles of court decisions, especially supreme court ones. I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends. Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions. It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision, they commonly seem to not even report on the actual legal question being decided! I have never seen a single mainstream news article which correctly casts blame on congress for failing to legislate effectively or unambiguously.
> Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
We don't need to hypothesize, Chevron was the law of the land for most of our lifetimes until the self-appointed Supreme Court super-legislature intervened. Arguably Chevron itself was the courts recognizing established legislative function with federal agencies that had existed for decades prior. We can see exactly how federal agencies would or would not abuse their authority, and congress really didn't have a problem with the situation as evidenced by the the absence of legislation to change the arrangement.
The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
"It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision"
In a lot of cases, they do more than that and outright misrepresent it.
> they can't see past that to consider the actual fundamental legal principles of court decisions
Precisely.
The court isn't ruling about CO2 emissions, it's ruling how the government operates within the confines of our constitutional system.
If Congress fails to pass a law that correctly empowers an administrative body to regulate X, then that regulatory body should be prevented from regulating X.
The issue then gets kicked back to Congress, where their job is to refine the law to address its deficiencies.
The idea that Congress can pass overly broad laws that administrative bodies can then independently interpret that are outside the ability to challenge in a court of law seems like a terrible system.
> I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends.
Uh, the US has a deeply dysfunctional system. It covers most aspects of governance, judiciary, legislative, electoral system, the fifth estate.
It’s entirely reasonable people are only concerned with outcomes, and not process.
> I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions.
Are you equally persuaded by the dissenting opinions? It seems likely that you’ve been fooled by a bunch of lawyers, who are smart and highly trained at making plausible-sounding arguments for whatever their clients require.
Constitutional law is political. The Supreme Court is recruited and appointed for their political loyalties, and to a large extent their decisions conform to their political alignment. To treat their arguments seriously about which side is correctly interpreting a very old, very ambiguous document can be an interesting academic exercise, but it misses the point about what they are actually doing.
I don’t think this is the “bitter medicine” or “hard truths” you think it is.
Separately, while it’s very interesting that you played a role in writing this, and I believe that you’re correct in general about the errors in the linked articles: despite the fact that you are highly experienced, there are still idiots who win court cases, even Supreme Court cases, on crap arguments, sometimes. However, idiots never become surgeons. In my personal experience, I don’t know any idiots who also write sophisticated software. So this idea that there is some kind of objective, apolitical correct interpretation of a statue - that the practice of law at the highest levels in trials in front of the Supreme Court has this major objective element to it as surgery and math does - is kind of bupkis, you are as much practicing something imaginary, subjective, political, and poetical as the musings of Alan Ginsburg as the professors do.
So what is your opinion: do you really think Supreme Court decisions are apolitical? How would you tell the difference between a politically motivated decision that uses your arguments as a “parallel construction” to support that political decision, and a sincere belief that your way of reading the statue is objective and apolitical? Because that is what people are pissed off about.
That would once have been taken as gospel, then came Ben Carson standing by his statement that Egyptian pyramids were built for grain storage.
In the medical world there are strong opinions as to whether the procedural dexterity inherent in excelling as a surgeon also requires better than average reasoning prowess.
I think it's fairly obvious that the court system is more metaphysics than physics. Even when the laws are clear, we still have politically motivated jurists who will put their own denominational spin on the application of said laws.
Really? One need only look at lists of physicians whose medical licenses have been revoked or who have been sued for malpractice or abusing their patients to disabuse themselves of the notion that "idiots never become surgeons". Heck the history of medicine itself is instructive on that front. Education and success in a specific field does not preclude you from being an idiot in others or indeed even within your own field.
You give yourself far too much credit. You provided a fig leaf to cover an ideological power grab by the court, as evidenced by the naked 6-3 partisan vote split. The court was going to dismantle the EPA anyway, and you just gave them some flimsy reasoning with which to do it. They would have run with far less than this, as evidenced by the run of extremely questionable court decisions which have occurred since conservatives gained the super majority.
Honestly, who cares at this point? Obviously the intent of the clean air act was to reduce air pollution which obviously includes regulating greenhouse gas emissions. I'm tired of playing the "Well technically..." game while the planet is actively dying.
Thank you for providing your expertise in this comment section. A few followup questions, if you will...
1. Posit for a second that 1970s lawmakers did intend to delegate sweeping powers to the EPA under the CAA and allow it to regulate CO2 in ways that reshaped the every sector of the economy, when the time comes. MQD says the CAA as-written didn't accomplish that, regardless of what legislators wanted, because the EPA can't decide major questions except where legislators clearly scope and delegate that authority. True?
2. Posit that a supermajority of lawmakers, today, wanted to rewrite the CAA to actually delegate those sweeping powers of CO2 regulation to the EPA. This would be impossible, because it's not possible to enumerate all the major questions, and clearly scope and delegate the necessary authority, in order to free the EPA's hand across future decades of rulemaking impacting every major industry. True?
3. My sense is that the 2012 EPA rules mostly killed new coal plants and doomed existing facilities, practically accomplishing the same kind of "generation shifting" described in your brief. This seems like the kind of "major question" that you argue cannot be decided by EPA rulemaking. Though any number of legal and practical facts may shield those 2012 rules from post-hoc scrutiny, similar rulemakings today would probably not pass muster. True?
4. What (if any) defensible actions do you think the EPA could take, today, to reduce CO2 emissions under authorities granted by 111(d) of the Clean Air Act?
I don't think your second point is correct. Congress could most certainly empower EPA to administer a cap-and-trade scheme or even some kind of phase-out, as it did with (respectively) acid-rain precursors and CFCs. Congress could do the same for GHG emissions, without spelling out the impact on each and every affected industry or source. Congress might, for example, set an economy-wide emissions cap, set a schedule of annual caps or a formula, specify how EPA should go about determining the cap each year, or some combination of those things. If Congress specifies that all sources economy-wide (or some subset of them) will be subject to a cap, then it has answered the major question.
On your third point, see the paragraph on page 38 of my brief linked above. "Generation-shifting," as used in the CPP, was EPA's claim that it could set "achievable" emissions standards based on turning off a source. One can argue about whether new-source standards satisfy the statutory test (BACT) applicable to major industrial facilities and whether the agency's decision to set those standards at a particular level is supported by the evidence or otherwise arbitrary and capricious. But that's an entirely different inquiry from whether Congress empowered EPA to switch off more or less every source of emissions in the country as it so chooses.
This endless jockeying to try to get the courts to allow the executive branch to have more power is ridiculous and dangerous.
If Congress wants the EPA to regulate CO2 they should just pass that as a law. The reticence to act on this is bananas. Congress has all the power here -- they can give the EPA discretion or specify a mandate for how they handle CO2.
Handing the power over to the dysfunctional Congress is exactly how the oil and gas industry intends to win. They own enough congressmen to make sure any such legislation never makes it out of committee.
Handing more & more power to a president is exactly how all of the other presidential systems in the world have collapsed into autocracy. I do not think the oil & gas industry 'owns' more than a minority of Congressmen and women, however you want to define that term. Remove the filibuster, weaken the Speaker of the House and return more power to the old committee system- that's how you empower Congress and get more legislation passed. But whatever you do do not hand more power to 1 single person. The US still has a relatively weak presidential system compared to other countries, and we should strive to stay that way
Edit to include: And this includes administrative agencies staffed by executive branch appointees. I'd like to see the Venn diagram of confused people who think 'no we shouldn't have an imperial presidency' but 'yes courts should defer to agency interpretations when the agency is run by appointees of the President'. Like The Office meme- it's the same picture!
> They own enough congressmen to make sure any such legislation never makes it out of committee.
Campaign donations are a powerful motivator but they lose to real public pressure every time. The public is not very interested in this problem because it's incredibly abstract and none of the proposed solutions seem designed to actually solve it without forcing a religious level of austerity on them.
In 1978 after the oil crisis Carter was already talking about getting off of foreign oil, we should develop renewable energy resources, be energy independent. Imagine where we'd be had we done even a few of the things he suggested?
Instead, the big oil companies, their lobbyists and OPEC made sure there would be abundance of cheap oil and then everybody just moved on and forgot about the long lines waiting for gas, rationing and other horrible stuff the oil crisis brought.
Not much has changed over the past 45 years which is pretty depressing.
Especially when 1 in 4 congresspeople are still invested in the fossil fuel industry. Money talks.
> As of Dec. 13, 2019, 134 members of Congress and their spouses own as much as $92.7 million worth of stock in fossil fuel companies and mutual funds, according to an analysis of financial disclosures by Sludge. House members own between roughly $29.5 million and $78.2 million in fossil fuel stocks, while senators have between $3.8 million and $14.5 million invested in oil, gas, and coal interests. Members of Congress generally report the value of their investments in broad ranges, so it’s not possible to know exactly how much their stocks are worth.
So, the theory is, the oil and gas industry can afford a few dozen or hundred Congressmen, but can't afford a President, or a Secretary, or even a few unelected bureaucrats whose offices I don't even know how to name that are actually making these decisions?
The problem isn't that you are wrong. You're right that Congress is for sale. The problem is, everyone is for sale, so that's a null argument; it cuts against you exactly as much as it cuts for you.
I mean, that totally blows. Don't mistake me for celebrating this. But it doesn't work as a "let's give the $BRANCH power over this" argument in any direction.
You think it's easier to bribe hundreds of people instead of one at the top? If it's money in government you're worried about, I have bad news for you. Everyone in government is susceptible to getting paid off, including (and especially) unelected people.
I agree with you but handing the power to the Executive Branch doesn't solve the problem.
The people need to demand more from their elected officials but the two parties have done an outstanding job getting us to fight with each other so we forget how the corporations are controlling everything.
As if there was not plenty of money to be done on renewables, replacing all the current fleet of automobiles, and of course all the financing that will be required to enable the green transition. As if the investor behind both industries weren't basically the same.
There are orders of magnitude more money to be made by the billionaires with a renewable based green transition than with oil. It will be the biggest transfer of wealth from the poor and middle class into the pockets of the bastardly rich in the whole history.
Congress being "dysfunctional" is just a way of saying Congress doesn't agree to do what you think it should. If the political will to do this isn't there (and it clearly isn't, otherwise we wouldn't be having this conversation) then it shouldn't be done.
This is clearly under dispute and not a fact that can be stated so cleanly . The article itself makes it clear that the Supreme Court ruled in 2022 that this is not the case.h
I mean, the 1970 act did spell out certain places where the EPA has authority in regulating greenhouse gases, including specifically CO2.
But they did not authorize the way that the EPA was setting standards for gas-fired power plants. The technicalities here run deep, but the fact that some academics at Yale think that it should be allowed tells us nothing -- already, three of the most brilliant legal minds in the country have already publicly dissented from the Supreme Court's opinion on the subject.
In the face of the ambiguity, the bias should be for the legislature to act to correct the ambiguity. There is no constitutional issue at stake, just a question of what the act authorized. Congress can just deal with this.
EDIT: This is incorrect; as pointed out below, the 1970 Act did not mention greenhouse gases or CO2 specifically. As of the 2022 amendment to the act there are several explict areas where greenhouse gases are specifically mentioned.
We can argue about what they intended, but here is what they wrote:
"The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source."
and
"The term “existing source” means any stationary source other than a new source."
Finally.. congress didn't hand EPA an unlimited authority to make decisions about sources. It handed them a process they must follow when it comes to ruling on "new sources."
With a law this complex, I'm not sure you can bring the intentions of a single sponsor into the consideration:
> The study, soon to be published in Ecology Law Quarterly, concludes that Congress “understood far more about the potential threat of anthropogenic climate change than either the [Supreme] Court or most commentators have recognized.”
This is an announcement and summary of key points of the study, it is not able to link to it because it's not been published yet.
They do sometimes share pre-publication drafts. Seems premature to put out an article with almost nothing in it. The information in the article lacks any sort of detail or even a logic basis for tying the points together. Plenty of policians make claims on a topic related to a bill that go farther than the actual bill that passes. So while one person has an interpretation the other members of congress can have different interpretations when passing the bill. That's why the preamble and the bill's contents are so important. Perhaps even the notes from the debate. But just a statement outside of those contexts? Bit of a stretch without seeing the research.
> The study, soon to be published in Ecology Law Quarterly, concludes that Congress “understood far more about the potential threat of anthropogenic climate change than either the [Supreme] Court or most commentators have recognized.”
I wonder whether this changes anything in practical terms. Can the EPA start enforcing the CO2 regulations again and take it back to the Supreme Court with this as part of the defense? Or is there another pathway to get a new judgement from the courts by taking this evidence into consideration?
End of the day we can always ignore the Supreme Court rulings. Thermonuclear option.
Marburey vs Madison was the courts interpreting the constitution to say that judicial review exists. Judicial review itself is a precedent that we've all been following in good faith.
I'd honestly love a historic review of judicial review and see if we think it's been a net positive or negative. For every civilian rights win there's also a dredd Scott, not sure how it's balanced on the whole. I've always thought it was a good thing and I like it in theory but... Now that I'm older I'm thinking about it's application in practice more critically
I have a pretty low opinion of judicial review, but I'm not clear that reviewing actions by administrative agencies actually qualifies as JR. Review is when the courts strike down actual laws passed by Congress. In this case it's an administrative action by an agency
Since Marbury vs Madison was so early on it would be hard to really figure out if it has been a net positive. We can make some assumptions about what would have happened, but I don't think it would really be practical to come to any conclusion.
Yeah but then why do you have to listen to any courts at all? EPA brings a lawsuit, you just ignore it. As far as I know without the courts they could just be arrested by local police for trespassing if they actually try to enforce anything.
With Chevron deference dead they won't be able to enforce anything about CO2 without it getting tied up in the courts and probably killed in one of the circuit courts.
Yeah, wait for someone to die and put someone else on the court. The Supreme Court has completely changed its mind on basically every important issue in the country's history, and it does so when the justices change, not when the evidence changes. They are not divine arbiters of truth, they're just people with opinions.
Readit News
For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]
[1] https://www.supremecourt.gov/DocketPDF/20/20-1530/204857/202...
How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?
Recent court opinions seem to take the stance that congress hasn’t legislated thoroughly and accurately, and now have crippled the chevron doctrine saying it should be in their hands.
There’s parallels here with software development, I think. It’s easy to come up with a basic system that works as intended but is not robust to failure. It’s extremely hard to near impossible to be both succinct, correct, and robust to failure. You also wouldn’t expect the PMs to be responsible for the implementation.
Of course, many lawmakers are happy to outsource the coding to special interests.
Decentralized, peer-to-peer systems tend to be pretty robust. Even if a few states "fail" the others will be fine.
Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.
It depends on the size of the overall system. The smaller the system the easier this is to achieve.
> many lawmakers are happy to outsource the coding to special interests.
In and of itself, this is actually a good thing, as you point out:
> You also wouldn’t expect the PMs to be responsible for the implementation.
So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto any legislation that hasn't passed with a super majority.
People are so fixated on a result (in this case lowering CO2 emissions) that they can't see past that to consider the actual fundamental legal principles of court decisions, especially supreme court ones. I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends. Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).
I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions. It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision, they commonly seem to not even report on the actual legal question being decided! I have never seen a single mainstream news article which correctly casts blame on congress for failing to legislate effectively or unambiguously.
We don't need to hypothesize, Chevron was the law of the land for most of our lifetimes until the self-appointed Supreme Court super-legislature intervened. Arguably Chevron itself was the courts recognizing established legislative function with federal agencies that had existed for decades prior. We can see exactly how federal agencies would or would not abuse their authority, and congress really didn't have a problem with the situation as evidenced by the the absence of legislation to change the arrangement.
The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.
In a lot of cases, they do more than that and outright misrepresent it.
Precisely.
The court isn't ruling about CO2 emissions, it's ruling how the government operates within the confines of our constitutional system.
If Congress fails to pass a law that correctly empowers an administrative body to regulate X, then that regulatory body should be prevented from regulating X.
The issue then gets kicked back to Congress, where their job is to refine the law to address its deficiencies.
The idea that Congress can pass overly broad laws that administrative bodies can then independently interpret that are outside the ability to challenge in a court of law seems like a terrible system.
Uh, the US has a deeply dysfunctional system. It covers most aspects of governance, judiciary, legislative, electoral system, the fifth estate.
It’s entirely reasonable people are only concerned with outcomes, and not process.
Are you equally persuaded by the dissenting opinions? It seems likely that you’ve been fooled by a bunch of lawyers, who are smart and highly trained at making plausible-sounding arguments for whatever their clients require.
Constitutional law is political. The Supreme Court is recruited and appointed for their political loyalties, and to a large extent their decisions conform to their political alignment. To treat their arguments seriously about which side is correctly interpreting a very old, very ambiguous document can be an interesting academic exercise, but it misses the point about what they are actually doing.
Separately, while it’s very interesting that you played a role in writing this, and I believe that you’re correct in general about the errors in the linked articles: despite the fact that you are highly experienced, there are still idiots who win court cases, even Supreme Court cases, on crap arguments, sometimes. However, idiots never become surgeons. In my personal experience, I don’t know any idiots who also write sophisticated software. So this idea that there is some kind of objective, apolitical correct interpretation of a statue - that the practice of law at the highest levels in trials in front of the Supreme Court has this major objective element to it as surgery and math does - is kind of bupkis, you are as much practicing something imaginary, subjective, political, and poetical as the musings of Alan Ginsburg as the professors do.
So what is your opinion: do you really think Supreme Court decisions are apolitical? How would you tell the difference between a politically motivated decision that uses your arguments as a “parallel construction” to support that political decision, and a sincere belief that your way of reading the statue is objective and apolitical? Because that is what people are pissed off about.
That would once have been taken as gospel, then came Ben Carson standing by his statement that Egyptian pyramids were built for grain storage.
In the medical world there are strong opinions as to whether the procedural dexterity inherent in excelling as a surgeon also requires better than average reasoning prowess.
Really? One need only look at lists of physicians whose medical licenses have been revoked or who have been sued for malpractice or abusing their patients to disabuse themselves of the notion that "idiots never become surgeons". Heck the history of medicine itself is instructive on that front. Education and success in a specific field does not preclude you from being an idiot in others or indeed even within your own field.
Deleted Comment
1. Posit for a second that 1970s lawmakers did intend to delegate sweeping powers to the EPA under the CAA and allow it to regulate CO2 in ways that reshaped the every sector of the economy, when the time comes. MQD says the CAA as-written didn't accomplish that, regardless of what legislators wanted, because the EPA can't decide major questions except where legislators clearly scope and delegate that authority. True?
2. Posit that a supermajority of lawmakers, today, wanted to rewrite the CAA to actually delegate those sweeping powers of CO2 regulation to the EPA. This would be impossible, because it's not possible to enumerate all the major questions, and clearly scope and delegate the necessary authority, in order to free the EPA's hand across future decades of rulemaking impacting every major industry. True?
3. My sense is that the 2012 EPA rules mostly killed new coal plants and doomed existing facilities, practically accomplishing the same kind of "generation shifting" described in your brief. This seems like the kind of "major question" that you argue cannot be decided by EPA rulemaking. Though any number of legal and practical facts may shield those 2012 rules from post-hoc scrutiny, similar rulemakings today would probably not pass muster. True?
4. What (if any) defensible actions do you think the EPA could take, today, to reduce CO2 emissions under authorities granted by 111(d) of the Clean Air Act?
Again, thanks for your 2c.
On your third point, see the paragraph on page 38 of my brief linked above. "Generation-shifting," as used in the CPP, was EPA's claim that it could set "achievable" emissions standards based on turning off a source. One can argue about whether new-source standards satisfy the statutory test (BACT) applicable to major industrial facilities and whether the agency's decision to set those standards at a particular level is supported by the evidence or otherwise arbitrary and capricious. But that's an entirely different inquiry from whether Congress empowered EPA to switch off more or less every source of emissions in the country as it so chooses.
If Congress wants the EPA to regulate CO2 they should just pass that as a law. The reticence to act on this is bananas. Congress has all the power here -- they can give the EPA discretion or specify a mandate for how they handle CO2.
Edit to include: And this includes administrative agencies staffed by executive branch appointees. I'd like to see the Venn diagram of confused people who think 'no we shouldn't have an imperial presidency' but 'yes courts should defer to agency interpretations when the agency is run by appointees of the President'. Like The Office meme- it's the same picture!
Campaign donations are a powerful motivator but they lose to real public pressure every time. The public is not very interested in this problem because it's incredibly abstract and none of the proposed solutions seem designed to actually solve it without forcing a religious level of austerity on them.
In 1978 after the oil crisis Carter was already talking about getting off of foreign oil, we should develop renewable energy resources, be energy independent. Imagine where we'd be had we done even a few of the things he suggested?
Instead, the big oil companies, their lobbyists and OPEC made sure there would be abundance of cheap oil and then everybody just moved on and forgot about the long lines waiting for gas, rationing and other horrible stuff the oil crisis brought.
Not much has changed over the past 45 years which is pretty depressing.
We need a solution for bribery (including current forms of "legal" bribery).
> As of Dec. 13, 2019, 134 members of Congress and their spouses own as much as $92.7 million worth of stock in fossil fuel companies and mutual funds, according to an analysis of financial disclosures by Sludge. House members own between roughly $29.5 million and $78.2 million in fossil fuel stocks, while senators have between $3.8 million and $14.5 million invested in oil, gas, and coal interests. Members of Congress generally report the value of their investments in broad ranges, so it’s not possible to know exactly how much their stocks are worth.
https://prospect.org/power/members-of-congress-own-up-to-93-...
The problem isn't that you are wrong. You're right that Congress is for sale. The problem is, everyone is for sale, so that's a null argument; it cuts against you exactly as much as it cuts for you.
I mean, that totally blows. Don't mistake me for celebrating this. But it doesn't work as a "let's give the $BRANCH power over this" argument in any direction.
The people need to demand more from their elected officials but the two parties have done an outstanding job getting us to fight with each other so we forget how the corporations are controlling everything.
There are orders of magnitude more money to be made by the billionaires with a renewable based green transition than with oil. It will be the biggest transfer of wealth from the poor and middle class into the pockets of the bastardly rich in the whole history.
But they did not authorize the way that the EPA was setting standards for gas-fired power plants. The technicalities here run deep, but the fact that some academics at Yale think that it should be allowed tells us nothing -- already, three of the most brilliant legal minds in the country have already publicly dissented from the Supreme Court's opinion on the subject.
In the face of the ambiguity, the bias should be for the legislature to act to correct the ambiguity. There is no constitutional issue at stake, just a question of what the act authorized. Congress can just deal with this.
EDIT: This is incorrect; as pointed out below, the 1970 Act did not mention greenhouse gases or CO2 specifically. As of the 2022 amendment to the act there are several explict areas where greenhouse gases are specifically mentioned.
I hate tech people sometimes
But since both sides are the same, I'm sure Congress will act with all due diligence.
Dead Comment
"The term “new source” means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source."
and
"The term “existing source” means any stationary source other than a new source."
Finally.. congress didn't hand EPA an unlimited authority to make decisions about sources. It handed them a process they must follow when it comes to ruling on "new sources."
With a law this complex, I'm not sure you can bring the intentions of a single sponsor into the consideration:
https://www.law.cornell.edu/uscode/text/42/7411
You would think that any competent lawyer would have had this research performed as part of the prior case. Makes me wonder what they actually found.
> The study, soon to be published in Ecology Law Quarterly, concludes that Congress “understood far more about the potential threat of anthropogenic climate change than either the [Supreme] Court or most commentators have recognized.”
This is an announcement and summary of key points of the study, it is not able to link to it because it's not been published yet.
Looks like it hasn't been published yet.
Marburey vs Madison was the courts interpreting the constitution to say that judicial review exists. Judicial review itself is a precedent that we've all been following in good faith.
I'd honestly love a historic review of judicial review and see if we think it's been a net positive or negative. For every civilian rights win there's also a dredd Scott, not sure how it's balanced on the whole. I've always thought it was a good thing and I like it in theory but... Now that I'm older I'm thinking about it's application in practice more critically
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Here's a full list if you're curious: https://en.wikipedia.org/wiki/List_of_overruled_United_State...
One fun example: in 1940 they rule 8-1 that schools can compel students to salute the flag and recite the pledge of allegiance (https://en.wikipedia.org/wiki/Minersville_School_District_v....). Then 3 years later they say oops nevermind, actually you can't do that (https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_E...). Some justices were in the majority on both cases.
Did the Constitution change in those 3 years? No, the people changed.
The fact that the drafters were aware of the issue and didn’t make it explicit actually cuts the other way.
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