Lawyer Losers, Who Work for our side, Rich Losers but Still Losers

After collecting fees for showing up, the usual incompetence was demonstrated by Lawyers for the Chamber and the National Association of Manufacturers at a Hearing before the DC Circuit. Why am I not surprised?
Let me explain one more time.

Here below is the usual triumphal but generally accurate description of how the Business Industry people lost again on EPA regs at the DC Circuit provided by another mainstream green outlet called E and E news.
I would suspect the fees paid by industry and business to attorneys who didn’t do anything right were extraordinary, but the arguments and lawyering were, in fact so bad that they created another precedent that allows for the EPA to push and have no fear. They pile up their precedents that are then used as excuses by judges from the right and the left.
I interrupt this E and E (lefty enviro media outlet)discussion on the case with a few notes. Hope you are able to understand why.
Federal judges skeptical of industry challenge to EPA soot standard
Jeremy P. Jacobs, E&E reporter
Published: Thursday, February 20, 2014
Federal appellate judges were skeptical today of a broad industry challenge to U.S. EPA’s new air standard for fine particles, or soot.
The National Association of Manufacturers, U.S. Chamber of Commerce and other industry groups are seeking to vacate EPA’s decision a little more than a year ago to tighten the National Ambient Air Quality Standard for fine particles from 15 micrograms per cubic meter over a year to 12 micrograms.
EPA justified making the standard more stringent by pointing to a series of scientific studies that have linked exposure to the particles, which come from tailpipes, power plants, drilling operations and boilers, to a variety of cardiovascular ailments (Greenwire, Dec. 14, 2012).
But industry groups claimed they submitted their own studies that suggested retaining the 15-microgram standard was sufficient.
Dunn note: The presentation of studies to the contrary is inadequate to nullify what the EPA is doing–they have to be challenged on what they do–put small association studies up to support their assertions of toxicity and proposal for regulations. With the studies they have they still lack proof of causation. That is the key, but it has be pursued as a admissibility question at the hearing or trial level, can’t be challenged by presenting a contradictory study to an appellate court.
William Wehrum of Hunton and Williams LLP, representing industry, told the U.S. Court of Appeals for the District of Columbia Circuit that EPA “put its thumb on the scale” in deciding which studies to give greater weight to.
Dunn note: This statement reveals the level of ignorance of Mr.. Wehrum. He certainly might have had some studies to point to that shown no evidence of small particle toxicity, but he said it wrong when he asserted that the EPA was “putting its thumb on the scale” because he doesn’t and didn’t know that the underlying challenge is an Administrative Procedure Act Challenge that argues that the studies relied on by the EPA do not and cannot prove toxicity, they are all small association studies that fail in ecological observational methodology to achieve adequate levels Relative Risk to be used as an argument for causation. That provides the challenge under the Administrative Procedure Act that EPA is arbitrary and capricious. The Chevron Deference allows agency discretion o interpretation of ambiguous language in the enabling statute, not immunity for acts or decisions that are arbitrary and capricious and not supported by acceptable science and scientific evidence. The game was lost for not creating the right challenge and then sleep walking the case while running the meter.
“We submitted data, and there is no indication the agency responded,” Wehrum said.
But at least two members of the three-judge panel suggested the agency deserves deference in setting the standard.
Judge Brett Kavanaugh, a Republican appointee who has previously criticized EPA air rules, said bluntly at one point that industry is facing an “uphill climb” because EPA’s Clean Air Scientific Advisory Committee, or CASAC, unanimously recommended the level EPA promulgated.
Kavanaugh said that he was “having trouble seeing how EPA could be deemed to have acted unlawfully” and that he was “not seeing how we can second-guess this,” since EPA waded through thousands of studies and used its discretion in setting the standard.
Dunn note: Judge Kavanaugh said it wrong. The agency may have the authority to decide under the statute what is toxic and how to mitigate the toxic effects–it does not have the discretion to arbitrarily or capriciously (in other words without reliable evidence and testimony) accept inadmissible scientific testimony and evidence on toxicity that fails to adequately follow the guidance on epidemiological studies and toxicology. The guidance on what is admissible is well described in the the Federal Judicial Center’s Reference Manual on Scientific Evidence 2011 3rd Ed. NAS Press) The guidance is clear and could easily be used by a conscientious federal judge to put the EPA in a quandary–they don’t have evidence and scientific conclusions that are admissible under a reasonable Daubert standard of admissibility under the Federal Rules of Evidence, particularly Rule 702 on Expert Testimony.
Judge David Tatel, a Democratic appointee, appeared to agree. He noted that previous D.C. Circuit cases have held that it is appropriate for the agency to consider all studies early in the rule making process, then winnow down that number later.
“We have cases saying that’s an appropriate way for the agencies to proceed,” he said.
Dunn note: Again, Judge Tate misstates the Agency duty and obligation under the Clean Air Act that is to find reliable evidence of what is toxic and how to mitigate that toxicity. Winnowing may be one method to determining toxicity only in that it eliminates the studies that are inadequate to establish toxicity or how to mitigate the toxicity.

Eric Hostetler of the Department of Justice, representing EPA, sought to build upon the judges’ questioning. He said the standard “easily meets the applicable deferential standard of review.”
Dunn note: When you have the judiciary on your side, you can say things like this.
Environmentalists have applauded the new standard, pointing out that the previous limits were set in 1997 and were widely regarded as insufficient to protect public health.
Industry groups, however, criticized them and quickly filed the current lawsuit. In addition to their argument regarding the scientific studies, Dunn Note: what argument?) they challenged EPA’s decision to change the monitoring system for determining whether areas are in attainment of the new standard, as well as eliminate the ability of states to average results for more than one monitor. The rule called for near-road monitoring, which industry claims will reflect exaggerated results from traffic that isn’t representative of the area as a whole. Dunn note: This objection to near road monitoring is about sampling, so there is no nexus to any good argument against the reduction of the standard from 15 to 12. Bad arguments weaken your presentation, and should not be used just to add weight or volume.
Tatel and Kavanaugh were joined on the panel by Judge Janice Rogers Brown, another Republican appointee. In a good sign for EPA, they asked very few questions of Hostetler.
Dunn note: I can’t imagine that Brown didn’t have something to say, but this is an E and E report so it might be tailored.
Kavanaugh did question Hostetler about the near-road monitoring, though. He responded that the requirement was aimed at making sure EPA has data that are representative of where people live. In urban areas, he said, vulnerable populations — such as low-income households — frequently live near roadways and are exposed to high levels of particulate matter due to tailpipe emissions.
It was “eminently reasonable for EPA to fill a gap” in its monitoring, Hostetler said.
Dunn again:
I belabor the point because this is what Milloy and I have worked so hard on.
Milloy’s study on small particle pollution–he found no correlation of small particle pollution with deaths in a long-term study of all of CA is enough in a normal scientific debate, to nullify the crap put out by the EPA sponsored researchers.
http://junkscience.com/2013/12/26/epa-air-pollution-scare-debunked-by-best-data-set-ever-assembled-on-particulate-matter-deaths/
My discussion on how to examine EPA witnesses on the issue of air pollution and expose their admissions that their studies don’t prove anything is here:
http://junkscience.com/2013/11/16/epa-hearing-exercise/
I must tell you that Milloy is quite disappointed, and so am I.
However, the enemy in this case is a bunch of well-financed creeps who have stampeded federal judges into thinking agencies can do whatever they want.
I don’t think I will surrender to their deceptions and misconduct. I also will not accept the malfeasance of federal judges.