"The earth just had a terrible day in court"
February 12, 2016 9:52 AM   Subscribe

For the moment, the fate of the Clean Power Plan — and the question of just how capable the United States is of self-governance — remains uncertain. The Supreme Court ordered the Plan to be temporarily halted, most likely until the Court hands down an opinion on the legality of the Plan in June of 2017. If the Plan survives the next presidential election, and if it is ultimately upheld by the Court, then Tuesday’s order will only succeed in delaying the new rules. If the Court ultimately strikes down the Plan, however, the United States could be left impotent in the face of a looming catastrophe — and not just with respect to this particular catastrophe. The states challenging the Clean Power Plan call for sweeping changes to the balance of power between the regulator and the regulated. Indeed, if some of their most aggressive arguments succeed, it’s unclear that the federal government is permitted to do much of anything at all.
-Ian Millhiser for ThinkProgress, "Inside The Most Important Supreme Court Case In Human History"
posted by zombieflanders (53 comments total) 31 users marked this as a favorite
 
NYT Editorial Board: The Court Blocks Efforts to Slow Climate Change
But flexibility, a generous time frame for compliance and public opinion were not enough to sway 27 states that sued to stop what they call a “power grab” by the federal government and Mr. Obama’s “war on coal.” Many of these states depend heavily on coal-fired plants for their power and many are run by Republican governors, who either willfully disbelieve well-established climate science or find it politically impossible to take steps necessary to reduce emissions. They also refuse to recognize that, rule or no rule, the nation’s energy landscape is already changing, with coal-fired power plants gradually but inexorably succumbing to cheaper natural gas and the emergence of renewable energy sources.

The justices could easily have waited. Last month, a unanimous panel of the federal appeals court in Washington, D.C., sided with the administration and refused to block the Clean Power Plan from taking effect. It set an expedited briefing schedule in order to resolve the case well before any significant action is required from the states. Normally, the Supreme Court allows this process to play out. But time and again, this court has shown itself to be all too eager to upset longstanding practice or legal precedent.

Chief Justice John Roberts Jr. often complains that the court is unfairly viewed as just another political branch. He said so again in an interview just last week, arguing that the nomination process creates the impression that justices are little more than party loyalists. “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. But, he insisted, “We don’t work as Democrats or Republicans.”

If the court wants to be perceived as acting in a judicial capacity, and not as an arm of the conservatives, it has a funny way of showing it.
posted by zombieflanders at 10:00 AM on February 12, 2016 [9 favorites]


Looking outside the United States' borders, even though the Clean Power Plan is not a make-or-break policy to avoid the worst consequences of global warming -- even stopping all power generation in the U.S. wouldn't be enough to do that -- America was a major force behind the recent Paris climate change accords, and for it to then pull back the centerpiece of its GHG-reduction agenda would do serious damage to the integrity of the agreement and almost certainly spur other nations to drop out.
posted by Holy Zarquon's Singing Fish at 10:01 AM on February 12, 2016 [4 favorites]


Sometimes I wonder if these same Republican governors will subsidize coal power in the medium term to keep polluting out of sheer fucking spite.
posted by Talez at 10:03 AM on February 12, 2016 [11 favorites]


vote vote vote and kick these Lochner-era cretins to the minority
posted by leotrotsky at 10:11 AM on February 12, 2016 [7 favorites]


the question of just how capable the United States is of self-governance

That the system produces an outcome you don't like does not mean it is incapable of functioning.

The court routinely strikes down anti-abortion laws too -- governance is not about getting the results you want all the time.
posted by mikewebkist at 10:11 AM on February 12, 2016 [6 favorites]


I had a bad feeling when the court agreed to look at this.
posted by Thorzdad at 10:11 AM on February 12, 2016 [1 favorite]


futurefuckers.
posted by mrjohnmuller at 10:15 AM on February 12, 2016 [4 favorites]


you know, if we had a functioning congress, this would be no big deal. repeal the contradicting clauses, in, out, done. But of course that won't happen.

I wonder how this decision will look ten, twenty, sixty years later, when we've said goodbye to Miami.
posted by angrycat at 10:16 AM on February 12, 2016 [17 favorites]


"That the system produces an outcome you don't like you and/or your descendants won't easily survive does not mean it is incapable of functioning."
posted by Hairy Lobster at 10:24 AM on February 12, 2016 [29 favorites]


Just glad it's Friday and we'll have whisky night tonight. I'll need it.
posted by Hairy Lobster at 10:25 AM on February 12, 2016 [2 favorites]


The prospect of having Chevron be functionally overturned is horrifying. It could result in the disassembly of the basically the entire federal environmental regulatory system. This could be bad.

ThinkProgress is overstating its case, but the downsides could be very bad indeed.
posted by suelac at 10:33 AM on February 12, 2016 [4 favorites]


The telling thing here is that energy production (along with banking, healthcare and education) is one of the MOST regulated industries in the US. We have a horribly corrupt banking system, a failing education system and an insane (although better than it was) healthcare system.

Regulation: you keep using that word...I do not think it means what you think it means.
posted by mikewebkist at 10:36 AM on February 12, 2016 [3 favorites]


That the system produces an outcome you don't like does not mean it is incapable of functioning.

Sometimes it does, though.
posted by maxsparber at 10:37 AM on February 12, 2016 [8 favorites]


States' rights are not healthy for children and other living things. Again.
posted by Sheydem-tants at 10:39 AM on February 12, 2016 [8 favorites]


Regulation means squat without enforcement.

Eliminating the budget that allows agencies to enforce the regulations or leaving enforcement up to the States can result in effectively no regulation.
posted by C'est la D.C. at 10:40 AM on February 12, 2016 [9 favorites]


That the system produces an outcome you don't like does not mean it is incapable of functioning.

MISSION ACCOMPLISHED
posted by a lungful of dragon at 10:53 AM on February 12, 2016 [2 favorites]


Sometimes I wonder if these same Republican governors will subsidize coal power in the medium term to keep polluting out of sheer fucking spite.

Well, the Republican governors' constituency sure as hell likes to pollute out of spite.

posted by AlonzoMosleyFBI at 11:00 AM on February 12, 2016 [4 favorites]


They can call it "Rolling Koch"
posted by hank at 11:03 AM on February 12, 2016 [2 favorites]


A very good explanation at Volokh Conspiracy.
posted by jpe at 11:06 AM on February 12, 2016


I'm not sure that the Supreme Court is going off the rails. But, if in 20 or 50 or 100 years we look back and see that it did go off the rails, I think we are going to be looking at three key cases as the proof of that:

1. Bush vs. Gore
2. Citizens United
3. Clean Power Plan

The problem here is not just the decision, but also that it is nakedly political, is widely seen as nakedly political, and also in the inept way the details are carried out.

For example, in Bush vs Gore the Court probably needed to act. But they needed to act in deliberation, not in haste, and in a way that made it crystal clear that it wasn't just the appointees from one party ensuring that their guy won.

The way Bush v Gore was actually carried out, it sure as hell looked as if the appointees from one party made sure their guy won, and the appointees from the other party did everything they could to stop it. The Supreme Court can't afford to look like that to the American public and retain their credibility.

In this case, the very early and unusual stay is completely unnecessary and gives everyone the impression that the fix is in on the final decision.

Obviously, much at this point depends on what the final decision is. But the irony here is that it is the Supreme Court itself that confirmed fairly sweeping powers under the Clean Air Act to regulate greenhouse emissions.

Everyone has known for years that the Clean Air Act is perhaps not the best platform for regulating greenhouse gas emissions. But it is the one we have, and if Congress wanted to create a different and better platform, all they have to do is get their act together and make one.

Congress has had many years to do so, but can't.

So it should be no surprise to anyone--least of all Supreme Court justices, who created the system we are now working under--that we are moving forward with the regulatory system that we actually have in place under the Clean Air Act, and which has been approved by both Congress and the Supreme Court.
posted by flug at 11:07 AM on February 12, 2016 [16 favorites]


the very early and unusual stay is completely unnecessary

The Volokh post explains the unusual procedural posture.
posted by jpe at 11:12 AM on February 12, 2016 [1 favorite]


Well, the Republican governors' constituency sure as hell likes to pollute out of spite.
You want clean air and a tiny carbon footprint? Well, screw you.
How fucking mindlessly spiteful do you have to be? I swear to fucking god that if Obama said "be careful don't hurt yourself with your guns" these people would be literally start shooting themselves in the foot.
posted by Talez at 11:12 AM on February 12, 2016 [9 favorites]


I don't understand the "head-in-the-sand" nature of climate change deniers, specifically those wealthy folks who are, presumably, looking after their business interests. What good is a gigantic pile of money if there's nothing left on Earth to spend it on? What good is power if there's no one left to have power over?
posted by tehjoel at 11:13 AM on February 12, 2016 [2 favorites]


If the court wants to be perceived as acting in a judicial capacity, and not as an arm of the conservatives, it has a funny way of showing it.

Just last week I was reading Lessig's article about his failure to recognize the emotional and political aspects of the case he argued and lost.
posted by the man of twists and turns at 11:18 AM on February 12, 2016


I'm glad I don't have any kids. I'm horrified enough by this stuff, I can't imagine the additional existential horror of knowing your kids are probably fucked.
posted by Automocar at 11:26 AM on February 12, 2016 [9 favorites]


I don't understand the "head-in-the-sand" nature of climate change deniers, specifically those wealthy folks who are, presumably, looking after their business interests. What good is a gigantic pile of money if there's nothing left on Earth to spend it on? What good is power if there's no one left to have power over?

The Kochs, as an example, are 75 and 80 years old. They have Croesus money. Why should they care about what's going to happen to the planet 25, 50, 100 years from now? By the time that Florida is underwater they will be long dead, their children have sufficient resources to move anywhere in the world they like and carry on, and poor people being unable to adjust to climate change and becoming even more subservient to those who can? That's a feature, not a bug.

Also Jesus is due back any day now. Look busy.
posted by delfin at 11:26 AM on February 12, 2016 [14 favorites]


I don't understand the "head-in-the-sand" nature of climate change deniers, specifically those wealthy folks who are, presumably, looking after their business interests.

I assume that for many, it's just bog-standard disliking the other guy so long and so habitually that anything making 'em squirm is a good damn thing. They'll take their head out of the sand eventually when climate change starts hurting them directly, and from then on they'll claim (and believe) that they were heroes fighting against climate change since day one, and they were the ones doing the real work that made a difference while you were the one always wasting everyone's time with your idiotic pie-in-sky bullshit ideas about how to "help".

In real life, Cassandra is neither recognized nor rewarded for being correct. There is no karma.
posted by anonymisc at 11:28 AM on February 12, 2016 [10 favorites]


The prospect of having Chevron be functionally overturned is horrifying. I

That doesn't seem to be a risk, since the question is whether there's an ambiguity at all. I think Tribe makes a pretty strong case that there is no ambiguity that would trigger Chevron. (Pdf)
posted by jpe at 11:29 AM on February 12, 2016


Roberts Court: horrible Supreme Court or worst Supreme Court?
posted by fifteen schnitzengruben is my limit at 11:29 AM on February 12, 2016 [1 favorite]


An extremely cynical (and paranoid) part of me wonders if some of the stunningly rich (like the Kochs) have done their own analysis of climate change impacts, determined it's already a lost cause, and said "fuck it--let's burn this mother down," or something.
posted by tehjoel at 11:35 AM on February 12, 2016 [1 favorite]


I think it's easy to underestimate the power of the effect of money on denialism, not just for the extremely wealthy, but for anyone whose income is tied up in a polluting industry. If your perception is that any admission of fact on climate change could lead to the disappearance of your livelihood, I think the tendency will be to deny until it is impossible to do otherwise. By pushing hard on these emotionally charged buttons and making people believe this, activist denalists are able to encourage them to dismiss the facts altogether, without consideration.

I'm not sure how you'd design it, but I'd love to see the results of a poll that was similar to the ones done about the ACA which showed widespread support for its ideas as long as they weren't associated with the law. I think if you were somehow able to devise something similar for climate change you'd see most people siding with the facts as long as they were considered in isolation from the political brand concept of climate change/global warming.
posted by feloniousmonk at 11:37 AM on February 12, 2016 [4 favorites]


something similar for climate change you'd see most people siding with the facts as long as they were considered in isolation from the political brand concept of climate change/global warming.

- Can physicists (and school children, and you) test basic thermal properties of CO2 gas?
- Do we know the diameter of the Earth? (to within a thousand miles or less)
- Does the diameter of Earth, and knowledge of falling pressure by altitude, allow mathematics (and school children, and you) to calculate the volume of Earth's atmosphere?
- Do accountants and computers track the sales of gasoline that gas-station pumps measure out into cars?
- Do chemists (and school children) know the chemical equation for combustion of octane?

Keep the government out of my medicare!!!
posted by anonymisc at 11:48 AM on February 12, 2016 [5 favorites]


"Last month, a unanimous panel of the federal appeals court in Washington, D.C., sided with the administration and refused to block the Clean Power Plan from taking effect. It set an expedited briefing schedule in order to resolve the case well before any significant action is required from the states."

So 'expedited' means a decision in June 2017? I'd hate to see a non-expedited schedule.
posted by jetsetsc at 11:50 AM on February 12, 2016


In 2008, the George W. Bush EPA promulgated a rule that says piping water from a river, lake or other above-ground body of water to another never requires a Clean Water Act permit, no matter how different the chemical composition of the waterbodies might be. Environmentalists, unsurprisingly, filed suit in short order. A ruling from the 2nd Circuit court of appeals is likely (but not guaranteed) by the end of 2016.

That's what non-expedited looks like.
posted by Holy Zarquon's Singing Fish at 12:09 PM on February 12, 2016 [8 favorites]


Oral Argument

--------excerpts follow------------

Mr. Chief Justice, and may it please the court:

Thank you, it’s good to be here. A special hearing convened by you is very special. I’m happy to answer your questions.

Well, yes, the subpoena. But I’m happy too....

... As you pointed out in Molecular versus Myriad, no one does anything except for money. Indeed you thought it was a great joke to imagine that people might work just for curiosity or recognition or the good of humanity. Curiosity, you said. That’s lovely, you said. Don’t you remember? You got a good laugh from the gallery, because you have no idea how scientists think or what motivates them. You actually seem to think it’s all about money....

... you’ve made it clear in many cases that side effects cannot be allowed to stop the making of money. Your priorities there are very clear....

... Possibly you’ve even heard people saying that the failure to regulate finance after 2008 was what led to the crash, and that the failure to regulate finance was a result of your decision in Citizens United and elsewhere. Possibly you’ve heard yourselves described as the cause of the crash, or even as the worst court in the history of the United States.

Sorry. This is what one hears when one is outside this room....

... I don’t know, can there be contempt of court if the court is beneath contempt?

I don’t care, I brought my toothbrush. I’ll be appealing this peremptory judgment at the next level.

Not true. There is most definitely a next level.

______________________end excerpt__________
posted by hank at 12:10 PM on February 12, 2016 [8 favorites]


Regulation: you keep using that word...I do not think it means what you think it means.

In America, "Regulation" means "Regulatory Capture", a term that totally cancels out the traditional meaning of the word.
posted by oneswellfoop at 12:30 PM on February 12, 2016 [4 favorites]


Perhaps the rest of the World should get together and wipe the slate clean and start afresh, if they can't work out how to clean up their act
posted by Burn_IT at 12:44 PM on February 12, 2016


tehjoel: "What good is a gigantic pile of money if there's nothing left on Earth to spend it on? What good is power if there's no one left to have power over?"

It doesn't matter how good your life is as long as it's better than everyone else.

feloniousmonk: "I think it's easy to underestimate the power of the effect of money on denialism, not just for the extremely wealthy, but for anyone whose income is tied up in a polluting industry."

This is hardly something that only effects climate change deniers it's just that vested interests have more money than average to communicate their views in this case.
posted by Mitheral at 1:01 PM on February 12, 2016


How fucking mindlessly spiteful do you have to be? I swear to fucking god that if Obama said "be careful don't hurt yourself with your guns" these people would be literally start shooting themselves in the foot.

There's a followup Volokh post that includes this delightful paragraph:
The CPP gives states substantial flexibility in how they decide to meet the required emission reductions. Among other things, the EPA hopes that states will rely to some degree on energy efficiency and conservation investments and emission trading to reduce the costs of compliance. Despite EPA’s promised flexibility, some states have indicated they do not plan to cooperate (much as many states refused to cooperate with the ACA and refused to create exchanges) [emphasis added]. Should states refuse to develop their own SIPs, however, the EPA has the authority to impose a Federal Implementation Plan (FIP) to achieve the same level of emission reductions. A FIP, however, is unlikely to be as flexible as a SIP could be.
I swear, the degenerate bullshit spouted by believers in "States' Rights" is literally going to be the death of us all.
posted by fedward at 1:46 PM on February 12, 2016 [4 favorites]


If you'd like to give yourself an aneurysm, here's no less than the Majority Leader of the United States Senate telling states to refuse to work with the EPA.
posted by Holy Zarquon's Singing Fish at 2:05 PM on February 12, 2016


Amazon needs to do a TV show where Nader never campaigned in swing states, Gore won, and Bush never happened. Someday the destruction Bush wrought will begin to diminish. I wish that time would hurry up.
posted by persona au gratin at 2:13 PM on February 12, 2016 [1 favorite]


"In real life, Cassandra is neither recognized nor rewarded for being correct. There is no karma."

… in the myths, she's neither recognized as right (contemporarily) nor rewarded — she's raped by Ajax in the temple of Athena, taken by Agamemnon as a concubine, and murdered by Clytemnestra with Agamemnon.

(Also, karma doesn't work like that, but whatevs.)
posted by klangklangston at 2:44 PM on February 12, 2016 [3 favorites]


It's less the fault of Nader and his supporters and more the fault of a nakedly political Supreme Court that decided that it was OK to rewrite the rules of one state's recount procedure, substituting their own judgement for the state's Supreme Court. Never mind that elections and vote counting are purely state issues under our federalist system.

Only in the Supreme Court's bizarro world is counting all the votes a violation of anyone's Constitutional rights. It really shows how state's rights is just a convenient excuse for bullshit like the ACA decisions and the likely outcome of the case we are presently discussing.

(Though it was reported that had the recount continued, Bush would have won, that was a lie. Gore won the election, but wisely chose not to foment rebellion by continuing to contest the result after the Supreme Court illegally selected a President)
posted by wierdo at 2:52 PM on February 12, 2016 [2 favorites]


“While Donald Trump Was Talking, the Supreme Court Was Putting Our World at Risk,” Charles P. Pierce, Esquire Politics Blog, 11 February 2016
posted by ob1quixote at 2:58 PM on February 12, 2016 [2 favorites]


This is so mind-bogglingly ... mind-boggling. There has always been a veneer of 'law abiding respectability' that the rich corporations have pulled over their political manipulation that I took as a kind of respect.

This? They seem to want a reminder that the numbers are against them, there are more of us than them.

Words fail. This is so staggeringly irresponsible, you'd think a ten year old were deciding.
posted by From Bklyn at 1:28 AM on February 13, 2016


Casting the deciding vote on this stay was the last thing Antonin Scalia did as a Supreme Court justice.
posted by Holy Zarquon's Singing Fish at 2:14 PM on February 13, 2016


New thread on Scalia's demise.
posted by homunculus at 2:28 PM on February 13, 2016






Did that article conflate feet and meters? Wikipedia says Berlin is at 34m or about twice as high as the 50 foot rise. Or is the official elevation not representative?
posted by Mitheral at 10:15 PM on February 25, 2016




Lyle Denniston: EPA’s mercury pollution rule remains in effect
Chief Justice John G. Roberts, Jr., on Thursday morning allowed the government to keep in effect its rule designed to curb air pollution with mercury and other toxic substances from the smokestacks of power plants. In a simple order that gave no explanation, and acting without referring the issue to the full Court, the Chief Justice rejected the plea of twenty states to block enforcement while the Environmental Protection Agency continues a study of the cost of the rule to the electric-generating industry.

Last Term, in the case of Michigan v. EPA, the Court ruled that EPA could not impose that rule on the industry until it had first taken into account what that would cost. That, the divided decision said, is a necessary part of any finding that regulation of power plant pollution was “appropriate and necessary” under the federal Clean Air Act. The twenty states, in their new application, argued that last Term’s decision meant that EPA would have no authority to keep the rule intact until it completed the cost analysis (which EPA has told the Court would be completed by April 15, if possible).
posted by zombieflanders at 9:04 AM on March 3, 2016


In more depressing news:

Eric Holthaus: Our Hemisphere’s Temperature Just Reached a Terrifying Milestone
As of Thursday morning, it appears that average temperatures across the Northern Hemisphere have breached the 2 degrees Celsius above “normal” mark for the first time in recorded history, and likely the first time since human civilization began thousands of years ago. That mark has long been held (somewhat arbitrarily) as the point above which climate change may begin to become "dangerous" to humanity. It's now arrived—though very briefly—much more quickly than anticipated. This is a milestone moment for our species. Climate change deserves our greatest possible attention.
posted by zombieflanders at 1:05 PM on March 3, 2016


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