A number of states have joined with industry organizations to challenge new rules from the Environmental Protection Agency on the grounds that they run contrary to the Clean Air Act. Oral arguments began on February 28 before D.C.’s Court of Appeals.
Previous cases have not gone so well. In 2007, in Massachusetts v. EPA, the Supreme Court affirmed the EPA’s authority to regulate carbon dioxide as a pollutant under the Clean Air Act. And last year, the Court unanimously threw out a lawsuit, American Electric Power Co. v. Connecticut, that was brought by eight states. In its decision, the court held that neither states nor private parties could bring a global-warming claim under the federal common-law theory of “public nuisance” because the EPA held authority over this issue. That decision leaves all such regulation solely in the hands of the EPA and threatens the right of plaintiffs even to appeal its decisions.
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But as the agency has moved to issue regulations intended to remedy “global warming,” an increasingly broad and robust set of empirical observations compels the conclusion that its operating theory and predictive models of climate are both wrong.
From a legal standpoint, one major problem with the EPA’s risk-assessment model — known as the Endangerment Finding — is that it is completely disconnected from the regulations that EPA itself claims the Finding automatically triggered; namely, the “Tailpipe Rule,” “Timing Rule,” and “Tailoring Rule.” In basic terms, this means that the “solution” was designed without any reference to the description of the problem. There is, for example, no definition of how much greenhouse gas is “too much,” what level causes “endangerment,” or what quantity is “safe.” There is, therefore, no goal around which to rationalize the EPA’s regulations, and no fixed line in the sand to halt the scope of the agency’s power.
Such a disconnect is both legally unprecedented and a radical departure from prior regulation, and it effectively allows regulation of a non-toxic and ubiquitous byproduct of civilization based on the arbitrary and unlimited discretion of the EPA, with no attendant restraint on the agency’s powers.
Let’s look at the three main regulations. First, the “Tailpipe Rule,” which is a joint venture with the National Highway Traffic Safety Administration (NHTSA). On their own, the NHTSA’s CAFE mileage standards for vehicles achieve almost all of the greenhouse-gas reductions that the EPA’s rule is intended to effect. The one exception that it does not cover: vehicle air conditioners. Assuming that the EPA is right on the science — a very daring assumption — the incremental environmental benefit of its being involved in the area at all is a best-case-scenario reduction of .004 degrees centigrade over 90 years. Don’t take my word for it; this statistic is from the EPA’s own estimates, which are published in the Federal Register. Such a change is well below the threshold of detection: .05 degrees centigrade.
And by just how much will such regulation have prevented a “sea level rise” after 90 years? In the best case scenario, by only .05 centimeters — or the width of a line drawn by a fine-point pen. As well as being insignificant in the extreme, this is also well below the threshold of detection.
You are quite right in your analysis of these rules, Hans. Unfortunately, because of the "substantial evidence" rule, it will be quite impossible - especially given the confused state of climate science and the different scientific facts (or pseudo-facts) that EPA can seize upon - for the D.C. Circuit to strike this rule-making and endangerment finding down. Given what I have read about the first day of oral argument, this standard of review appears to be what the panel of judges hearing the case are inquiring into and focusing on. Given their current ideological composition, I don't think they will find it hard to turn down the appeal, either. They have a convenient excuse.
It is high time for Congress to change the standard of judicial review in the Administrative Procedure Act. I do NOT think administrative agencies like EPA should have such tremendous discretion or be given high deference to make what is effectively policy in substitution for the judgment of Congress (even though Congress has given up their powers of judgment and legislative authority for years now). Especially given the politicized science behind climate change. I for one do not want some unelected bureaucrat making these kinds of critical judgments alone.
But the D.C. Circuit judges will have an excuse to bail out and buck this to the U.S. Supreme Court.
Hans: Thanks for the informative article. Let's hope the Court will throw this atrocity out the window. If not, I would expect it to make its way to the Supremes, where they can cogitate on the unanticipated results of their meddling.
Not a good period of time for science -- or the EPA. Both the morality and the science of the global warming alarmists is upside-down. More here: External Link
All this legalistic mumbo-jumbo confuses the real issue...the EPA exists and exerts authority in an extra-constitutional manner. Under what magical auspices does EPA exist? Welfare? Commerce? In either case, the existence of an agency that has been given specific authority to control indivisible citizens' behaviors is not codified in the Constitution. We citizens have been far too generous with our patience and tolerant of the many outrages t our freedoms and liberties at the hands of the EPA since its inception in the Nixon administration.
Good God, the EPA is probably more responsible for an individual being stripped of decisions that rightly should be made by the individual, and not some faceless bureaucrat in DC, than any other government entity except perhaps the IRS.
But because of the manner in which we elect our representatives, I fear that we're stuck with the EPA forevermore -- and we'll just have to continue to be used to being serfs of our own government, and pawns of higher, more elite, political ambitions.
tmarini - My sentitments exactly. Unfortunately, no one is willing to hold Congress' feet to the fire and point to Article 1, Section 1 that says, all legislative authority is vested in the Congress. That precludes the Administration from regulating anything outside of itself. To do so is to do something not in the Constitution, and hence unconstitutional. Unless, and until we demand of Congress that it recapture the regulatory powers it has ceded to the Administration, this kind of nonsense will continue.
I listened to Medved driving home today as he played clips of a Georgetown law student testifying before Congress how devastated the women of Georgetown were because they cannot afford to pay for their birth control. Their lives are ruined because they need to spend $3000 of their own hard earned money to fund their birth control, why that’s an entire summer vacations income.
Needless to say it took Medved about 20 seconds to thoroughly debunk her moronic mendacious dribble.
Georgetown is a private Jesuit institution and one of the best law schools in the nation but this is what they produce. Not people interested in the pursuit of truth and justice but graduates who are capable of effortless guiltless twisting of words and reality in order to create their own self defined truths.
These graduates then go to work for the government in order to impose their reality upon us. After a short while of ‘giving back’ they leave the government to join the private sector where they are guaranteed riches because only the have the arcane skill to keep business afloat in the legal maelstrom they have created. The hyper ambitious enter politics where they become a permanent cancer upon society.
We taxpayers have subsidized this folly.
We taxpayers must hold our elected officials to first principles before we are outnumbered by the non taxpaying electorate and effectively enter enslavement by the shackling tentacles of Leviathan.
Me thinks the "student" from Georgetown is lying about the cost (or is so dumb as to have the IQ of a doorknob). Read this from the Weekly Standard: External Link
First and foremost, the AG's pursuing this case need to focus on one thing - the "Endangerment Finding". That is the Achilles Heel of this charade the EPA is on. The EPA does not have authority to invent new threats, come up with new science that is only believed by itself nor skew results to meet a political objective. The Endangerment Finding is just that - a flawed, some would say even "fraud" - finding. It's no more than a few EPA staff coming in one day and talking with Carol Browner and a few folks on Waxman/ Markey's staff and all commenting that they'd stayed at a Holiday Inn Express last night and really felt like they knew what needed to be done. IN reality, they read all the garbage and fraudulent science put forth by Mann et al and the rest of the political operatives in what is called the climate movement.
It's just not enough for the EPA to guess at something as consequential. The law does NOT let them just offer an "endangerment theory" or an "endangerment hypothesis". And when all is said and done - that's all they have. Mass. vs EPA is noteworthy - but it's completely beside the point. Just have the EPA show and prove what science its Endangerment Finding is based, and the smoke and mirrors and lies will simply clear away.
Personally, I think the FBI and GAO should do an investigation to see who and why such deceit was foisted upon the American corporations and their employees and customers - or in other words - the AMERICAN VOTER!!
Congress must indeed recapture the moral power to legislate. Administration has been gradually substituted for legislation over the decades with little notice by the general public, but now the administrative state is on the brink of no return. This is symptomatic of immoral politicians who find it easier to delegate authority via important - sounding yet insidious legislation which empowers legions of bureaucrats to dictate all facets of human behavior. This in turn requires escalating attention from these temporary figureheads who promise increasingly intrusive remedies for the policies their political class created. Our Founders attempted to prevent the dehumanizing and debilitating tyranny now being inflicted upon us by the endless swarm of functionaries at HHS and EPA.
