Appalling: Court cites YouTube cartoon in upholding EPA law-breaking on greenhouse gases

The DC Circuit Court of Appeals actually cited a YouTube cartoon video in its effort to assist EPA break the law with respect to greenhouse gas regulation.

Here’s the passage upholding the “tailoring rule” from today’s decision. Click the highlighted section for the YouTube video.

Indeed, the Timing and Tailoring Rules actually mitigate Petitioners’ purported injuries. Without the Timing Rule, Petitioners may well have been subject to PSD and Title V for greenhouse gases before January 2, 2011. Without the Tailoring Rule, an even greater number of industry and state-owned sources would be subject to PSD and Title V, and state authorities would be overwhelmed with millions of additional permit applications. Thus, Petitioners have failed to “show that, absent the government’s allegedly unlawful actions, there is a substantial probability that they would not be injured and that, if the court affords the relief requested, the injury will be removed.” Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011) (quotations and alterations omitted). Far from it. If anything, vacature of the Tailoring Rule would significantly exacerbate Petitioners’ injuries.

Attempting to remedy this obvious jurisdictional defect, State Petitioners present two alternative theories, neither of which comes close to meeting the “irreducible constitutional . . . elements” of standing. Lujan, 504 U.S. at 560. First, State Petitioners counterintuitively suggest that they actually want EPA to immediately “appl[y] the 100/250 toy permitting thresholds to greenhouse-gas emissions.” State Pet’rs’ Timing & Tailoring Reply Br. 15. Admitting that vacature of the Tailoring Rule would result in astronomical costs and unleash chaos on permitting authorities, State Petitioners predict that Congress will be forced to enact “corrective legislation” to relieve the overwhelming permitting burdens on permitting authorities and sources, thus mitigating their purported injuries. Id.

This theory fails. To establish standing, plaintiffs must demonstrate that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” Lujan, 504 U.S. at 561 (internal quotation marks omitted), but here, State Petitioners simply hypothesize that Congress will enact “corrective legislation.” State Pet’rs’ Timing & Tailoring Reply Br. 15. We have serious doubts as to whether, for standing purposes, it is ever “likely” that Congress will enact legislation at all. After all, a proposed bill must make it through committees in both the House of Representatives and the Senate and garner a majority of votes in both chambers—overcoming, perhaps, a filibuster in the Senate. If passed, the bill must then be signed into law by the President, or go back to Congress so that it may attempt to override his veto. As a generation of schoolchildren knows, “by that time, it’s very unlikely that [a bill will] become
a law. It’s not easy to become a law.” Schoolhouse Rock, I’m J u s t a B i l l , a t 2 : 4 1 , a v a i l a b l e a t (last visited June 1, 2012).
[Emphasis added]

22 thoughts on “Appalling: Court cites YouTube cartoon in upholding EPA law-breaking on greenhouse gases”

  1. Ben

    Agreed that it is not a black and white issue, particularly as to whether investment in mitigation or adaptation is more appropriate, and whether, for example, a larger share for nuclear power is an answer, which I have reservations about but also think that the risks of not taking that course are high.

    I am a lawyer, and while the Clean Air Act is not perfect, I have seen enough to think that there is little chance of legislation on this issue (the point the court alluded to by referring to the youtube video!). So to me the CAA offers the best albeit far from perfect start on regulating emissions while the political will grows for something more substantive.

    BTW, surely you are not suggesting that the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC) are simply ‘political groups’? I assume it is not so black and white?

  2. Ben of Houston,

    I’m in the process of giving you a standing ovation for that post!! You should have gotten the Nobel Peace Prize for that – you deserve it more than Obama! Nicely done!

  3. First, all of the “scientific agencies” you cite are political groups, and there have been several notable resignations from other authorities over this. Most notable, Ivar Giaever
    However, Judith Curry is another person to reference.

    Now, even assuming those authorities are correct in their assumptions about the magnitude and effect of climate change (and the claims made by them are far short of the nonsensical apocalyptic propaganda that often comes from the media), the actions to avoid it are more detrimental to society than the harm that climate change will cause. How much warming could be avoided by a trillion dollars of investment? Approximately 0.01C. That same investment could wipe out malaria, bring proper sanitation to the world’s poor, and then bring electricity and modern farming techniques to override the harm that climate change would bring.

    Finally, the clean air act cannot be used to regulate CO2. It was made for localized pollutants that can be removed by control devices. The whole attainment system doesn’t work (the entire planet is in non-attainment and will continue to be for the next million years), and the BACT system doesn’t work. The EPA’s electrical generation BACT was to ban coal power plants and single cycle natural gas plants.

    I am out of time, but I hope you research this further and come to see that this isn’t a black and white issue.

  4. Ben, addressing your last point, responding to an argument that the EPA has improperly relied on findings by other scientific agencies, including the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC), the court said:

    “This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decisionmakers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

    Look, I like the idea behind the Junk Science website ie to uphold the works of scientists and expose science that is not science ie politically or personally motivated.

    So you have to wonder why, on the climate issue, the stance of this site is that most of the scientific establishment (literally thousands of scientists) are acting fraudulently. Doesnt that sound a tiny bit political to you?

  5. Gamecock –
    See Article II, Section 2 of the Constitution. It doesn’t specifically say the “Department of Justice,” but it gives the President the power to appoint such. George Washington was the first to appoint an Attorney General in 1789. There was no specific “Department of Justice” created until 1870, but there has never been a dispute that the President has/had the power to make such appointments by the power vested in him by the Constitution.

  6. “the Justice Department, which is Constitutionally authorized”

    Ha ha ha ha. Pls provide a link.

  7. Gamecock,

    Sorry, I wrote my comment to Ben of Houston, when I meant to address it to you. Please forgive me. 🙂


  8. Ben,

    You make very good points, many of which I agree with; but your final comment makes my point. It was a single citizen, your brother, who made the observation and complaint. Why couldn’t he just take that complaint to the Justice Department, which is Constitutionally authorized? The other point is that having regulations and laws does NOT stop criminal behavior; it only provides the means for dealing with it after the fact. When a crime takes place, knowledge of the fact is most often, if not always, due to the observation of a concerned citizen.

    For the sake of argument, let’s say the EPA did not set the CAFE standards. What if the states were allowed to do so? A state who was then affected by another state’s “violation” could write tickets to drivers who came into their state abusing their regulations/laws, couldn’t they? Granted, you can make the argument, the pollution (or lack thereof) would occur whether the offenders were caught or not, but isn’t that always the case? And wouldn’t it be an effective competitive advantage for auto makers to reach the highest standards of gas mileage and pollution prevention?

    I just think there are better ways of dealing with such infractions. We need to start thinking outside the box with all these agencies who write law outside the Constitution. The EPA would be fine as an enforcement agency, but the laws should be written by Congress.

  9. An EPA type agency makes sense for enforcement of interstate rules and navigable waters. I worked for a state agency many years ago and it was clear that enforcement decisions were predicated on political considerations. The EPA protecting South Carolina from Georgia’s decisions is a good idea.

    The problem is the EPA has become a politcal tool,
    engaging in nefarious activities. It also suffers from
    bureaucratic ossification. My brother tells me of a plant near his house that only runs at night. Calls to EPA concerning emissions from the plant result
    in the EPA reporting that they checked out the factory one day, and found no emissions. When told that the plant only runs at night, the EPA responded that they don’t work at night.

  10. Ben,

    I appreciate your points on the EPA, but why do we need a national bureaucracy when the states ALL have their own. I live in California and we have enough bureaucratic strangulation to think we could loosen one more finger from our throats. I think the EPA as regulated themselves to obsolescence and they should be buried with the dodo. Sorry – I think they are now overkill and cause more damage than good.

  11. Tom, no it is the insult that perturbs us. The argument was that without the Tailoring Rule, CO2 regulation would not be done at all, thus anyone affected by CO2 regulation has standing to challenge the Tailoring Rule. Instead of acknowledging that point, the judge denied it (which is his right as a judge) and insulted their logical argument by quoting Schoolhouse Rock (implying that a small child could see through it, also known as poisoning the well). Such a quip is irrelevant and condescending to those people who are arguing that a clearly unconstitutional regulation is unconstitutional.

    Secondly, this post isn’t a rebutal. It’s a complaint about a minor thing. Not all writing has to be great essays.To address your point. The fact is that these are not the same people and processes, and in fact, politicans took over and abandoned science to get the results they wanted. The IPCC willfully ignores contrary viewpoints and relies on shaky-to-fraudulent arguments to present “solutions” that will undeniably cause harm to humanity.

  12. Come on guys, is that your best shot? You are concerned about reference to a well known cartoon about how laws are made, and how hard it is to get them passed?

    Overall, the court is saying that the people and processes which have enabled us to put satellites into space, people on the moon, develop cars, skyscrapers, mobile phones, computers and the internet, are applying the same standards when they assess the threat of climate change. And your problem with that is …….?

  13. Anyone trying to build a legal argument on what Congress and the president might do in the future is riding the thin ragged edge of desperation and well on the way to complete and utter implausibility. To be sure, there are idiot judges, but idiot lawyers have a big impact on court cases too.

  14. Thom, the EPA’s main duties aren’t the huge, nasty events where flares blacken the skies or toxic spills cover the earth. The duty to get our base air quality under the NAAQS is a job that does require a regulatory agency in place to issue permits and ensure compliance with emissions limits. While free-will and desire does cause significant improvement, tragedy of the commons eventually sets in when the costs become high (and they get REALLY HIGH trying to meet the 8-hour ozone standard or in remediating old shames).

    Third parties attempting to watchdog minor work would create non-sustainable legal quagmires. Do you want Greenpeace overseeing a fugitive monitoring program written by a judge that has never seen the inside of a chemical plant in his life?

    No, the EPA is necessary and should not be eliminated. However, they should be refocused on measurable effects and not these marginal sub-NAAQS improvements which have no basis in medical reality.

  15. Do we really need the EPA? If a company infringes on the environment in some way, aren’t there enough independent, “non-profit” organizations that will come out of the woodwork to sue. And if they sue, doesn’t it then become the jurisdiction of the Justice Department? Why do we need another agency to tell us not to pollute? Hasn’t the entire world been educated enough about the evils of exhaling or enhancing our lifestyles? Ban the EPA and we will get rid of a lot of the pollution in our government!!

  16. In their defense, that schoolhouse rock segment is 37 years old. It is no more inappropriate than a quotation from Ayn Rand or Dr Seuss. A more relevant problem is the sheer condescension involved in the quotation.

    Even worse is the declaration that a citizen cannot challenge the legality of a regulation that “benefits” them. Taking aside the very real fact that without the tailoring rule, there would be no CO2 regulation, this ludicrous interpretation would mean that a white person would lack standing to challenge Jim Crow laws.

  17. KayakDave Tom, please use spellcheck, your thoughts are good but the “crazies” use this kind of stuff to propagandize that we are all “mental defectives” with posts like this- they will do anything to win!

  18. Forget the cartoon youtube side of this. This court is citing the process of making law as a reason to by pas the law? Its hard to pass law by design. That way every court and adminasstation that happens along can not rail road the people into bad law with out US having a say threw our elected represives.

  19. I truly fear for the future of this nation !!……. you are correct, Ben…. there ARE no words.

  20. I must say I am at a loss for words. That judge, or, those judges, should be immediately removed from the bench and placed in a home for the mentally infirm.

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