Supreme Court ain’t the answer on EPA overreaching

This link below is to Leighton Steward’s recent essay in the  DC insider mag The Hill, and it is another engineer’s optimistic essay on why the Supremes should stop the scientific fraud on Carbon Dioxide.  Steward also refernces a fine essay by Craig Idso on the positive benefits of carbon dioxide. 

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Here’s the problem that creates the whip saw effect in the appellate courts.  The lefty part of the Supreme Court or any appellate court would never consider restraining agency actions that promote a leftist agenda–OK that’s understood, judges are political.   

The “conservatives” on the appellate courts all the way to the Supremes, hold to the concept of judicial restraint, which means that they have to stand back and defer to agency discretion under a tortured analysis of a case called Chevron for short, linked here

The decision in Chevron v Environmental Resources Defense Fund (1984) declaimed that agency discretion is allowed on interpretation of a statutory ambiguity that sounds benign but the devil is in the details and the execution.  Aggressive agency apparatchiks take that to mean they run free, and judges seem to agree. 

That little gem word discretion combined with the tendency of the Congress to delegate the tough details actions to agencies, makes the executive branch very powerful, some say in violation of the US Constitution’s effort to create 3 branches with limited and balanced powers.

The judicial restrainers are not restrained when applying a very expansive concept of Congressional delegation and agency discretion, so if an agency says the moon is green cheese–so be it, if green cheese must be promoted or regulated–again, so be it.

The only chance of challenging the scientific underpinnings is an evidentiary challenge in a trial court or hearing and forcing the Judge or hearing officer under the role of the judge applying the Rules of evidence and the jurisprudence of the Daubert v Merrill Dow (1993) case.  Depending on the ruling on admissibility of good or bad science, the appeal goes up on whether the court ruling violated the courts authority and discretion.  If the court wasn’t arbitrary and capricious in its evidentiary ruling, on whether the agency was arbitrary and capricious (ain’t that a mouthful?) then the appellate court will defer to the trial court’s discretion and role as the gatekeeper to good scientific evidence.

An appeal on a decision to allow the green cheese theory is a limited thing, with a chance to vet the science, depending on the attitude of the appellate court.  Remind you of the DC circuit on the endangerment issue first time around?

An appellate court decision can go to the evidentiary rulings and the scientific questions, sort of.  However a ruling to allow green cheese at the trial court is a tough one to overcome because the courts discretion must be clearly misapplied and result in an arbitrary and capricious evidentiary ruling on an allegedly arbitrary and capricious agency decision.  Is your head about to burst? 

My favorite con law man on the nature of judges is Robert Nagel of U of Colorado–and he points out that judges are lawyers, and as a result figure they are elite, and inclined to be oligarchs.  Oligarchs support the state that gives them their status and ofen their sinecure.

So here is Leighton’s very well reasoned argument–although I think he is way too optimistic.   Only Alito and Thomas will hold to his position that agency overreach should be stopped by the Courts.

Here is Robert Nagel’s essay on why you have to remember judges are successful, very self satisfied and confident oligarchs, life tenured in the case of Federals, who like big government and want to be part of the planning process. 

First, Nagel’s commentary on why Roberts found a way for Bamstercare From the Weekly Standard in July of 2012

Second, Nagel’s very insightful essay on why judges are the way they are that caught my attention and made me a fan in 2005, from National Review.

Nagel is a former assist State Attorney general in Pennsylvania, Swarthmore and Yale Grad, long time faculty (since 1975) at U of Colorado, probably a lonely conservative voice in the faculty lounge, but he does have a good sense of humor.  He occasionally writes for political mags and has a couple of books on con law.   Fine gent. 



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3 responses to “Supreme Court ain’t the answer on EPA overreaching

  1. Which means we do battle better at the ballot box than in the courtroom. But sometimes we have to turn to the courts to guard our rights from those who believe “majority rules!” is a validation of theft, compulsion or prohibition of things that are not public.
    I’d apply the same libertarian thought to same-sex marriage and drug use.

  2. Well, that get’s us to the real problem. Why have “we the people” allowed the judiciary to get to this point where they are the final arbiters of, well, everything? It’s not in the Constitution. It’s only in the minds of the people (voters?) that lets that branch to get away with this. And I say, that has led to the failure of the Congress (elected by the people) to perform their Constitutional function (duty?), to define the powers of the federal courts.

    • Howdy eck
      Let’s be fair to the courts. Courts respond — sometimes with political leanings, yes — to the cases that litigants bring to them. There are a lot of cases where the standing is hard to see, especially in environmental cases, but people launch the cases. Once the case is before the court, the court has to work the case according to the law.
      A lot of cases wind up in appellate courts just to review standing or similar issues before a trial occurs. If a litigant files a petition, the court has to take the petition seriously until it’s reviewed.
      I certainly grant that some judges are very eager to have cases brought up that probably don’t belong in courts and some judges will keep a case alive when it seems absurd.

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