Results tagged “clean air act” from PlanetGreen.org

Scott Pruitt's EPA: Don't Forget Our Rights

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On Wednesday, Trump transition team officials announced that E. Scott Pruitt, Oklahoma Attorney General and longtime ringleader of corporate and state resistance to the Clean Power Plan, will be named Administrator of the Environmental Protection Agency. As an affected citizen troubled by this appointment, I decided to directly ask the nominee some of my lingering questions about his policies.


Dear Mr. Pruitt,


This letter is probably not going to have any impact on the policy of the Environmental Protection Agency for the next four years. It's not going to save any lives that thousands of pages of scientific studies and legal arguments couldn't protect. I know it's not going to change your mind. But it's all I can do.


I was a supporter of President-elect Trump during the campaign, and the events of the past weeks largely validated my faith in his promises, but the laissez-faire environmental policy you have long espoused has me concerned, quite frankly. Your past positions in the ongoing lawsuits over the Clean Power Plan show great solicitude for the pecuniary cost of the EPA's regulation of the energy sector; but the plenary constitutional powers of the United States government and the human cost of inaction, though harder to quantify, must not be forgotten in the quest to revitalize the economy.


What is the paramount vision the agency under your direction will promote? For decades now, we have compared ourselves to the Chinese, envied their GDP and their rapid rise while watching from our slow, nearly imperceptible decline. But is the image of prosperity really the photograph of throngs waiting for a streetlight to change, just their eyes visible, their countenances concealed by surgical masks? Is the symbol of economic rejuvenation truly the footage of a cargo ship puffing blindly ahead in the space between the ocean of tainted green below and the sea of miasmic gray above, struggling to find the vague red glow of a safety beacon? Will these images be of our sidewalks, our ports, our lives? That choice is entirely in your hands, now. How much do you estimate the gold disc of sun to be worth, and what benefit compensates the citizens of Beijing who can no longer see it in the sky overhead? How many cents is each act of respiration valued at, and how much would a man suddenly unable to breathe give to have the privilege restored for just an instant? How many dollars does each individual's stake in our common atmosphere - the right to suspire freely and to enjoy a clear sky, a prerogative Justice Brandeis once called "an easement of light and air" - represent? These are your decisions to make. This is the arithmetic of the air, just as much as any costs of implementation can be.


Those regulatory effectuation expenses incurred can be assailed as unreasonably burdensome, or they can more simply be acknowledged as the cost of living. The government of a free nation is bound to respect the rights of natural and juristic persons within its borders against adscititious, unjustifiable regulation. But it does not have to do so at the price of the health, safety and lives of its citizens. It does not have to do so by relinquishing its sovereign authority to regulate interstate commerce and the airspace over which it retains sole control.


The exclusive authority of Congress over commerce between the several states is unambiguously set forth in Article 1, Section 8. The issue of environmental protection may be a comparatively new incarnation of the same conflict among the levels of our government that the Constitution was written and ratified to resolve, but it cannot be exempted from the univocal wording meant to cover all interstate commerce. The establishment of federal control over navigable waterways resulted from the recognition of a river's inconstancy, the impossibility of imposing political borders on the formless flow of fluid. See Gibbons v. Ogden, 22 U.S. 1, Transportation Co. v. Chicago, 99 U.S. 635, Pennsylvania v. Wheeling Bridge Co., 18 How. 421, Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, and Gibson v. United States, 166 U.S. 269 ("Although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the Constitution"). As was said further in Gilman v. Philadelphia, 3 Wall. 713:


"The power to regulate commerce comprehends the control... of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders."


The federal government is vested with the same control over United States airspace for much the same reasons. The notion that each state can set and enforce its own emissions standards - without materially affecting the air quality of another state and the health and safety of its residents - is clearly as chimerical as any supposition that the states' riparian policies are not inevitably interlinked. As the Supreme Court noted per Justice Ginsburg in EPA v. EME Homer City Generation, 134 S.Ct. 1584 (2013):


"Some pollutants stay within upwind States' borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.' The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind." See also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), 49 U.S.C. §40103.


The constitutional assignment to Congress of the regulation of interstate commerce thus ineluctably vests the United States government with undivided control over air and water. We cannot allow this fundamental framework to be subverted due to policy disagreements or concerns of economic expediency. The principal objections to the Clean Power Plan are the fiscal impact of its implementation, and the heightened impact felt by states with an economy centered on the production of oil and natural gas; but this cost of our constitutional system cannot be permitted to take precedence over the Constitution itself. As President Andrew Jackson famously proclaimed during the Nullification Crisis in South Carolina in 1832:


"If the unequal operation of a law makes it unconstitutional and if all laws of that description may be abrogated by any State for that cause, then, indeed, is the federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our Union. We have received it as the work of the assembled wisdom of the nation... We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defense and support... Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country?"


The contentious nature of the Clean Power Plan litigation has been replaced now by your delicate responsibility of ensuring our citizens' safety - the land and our lives are in the balance of every cost-benefit analysis the Agency will conduct under your leadership. I ask you Jackson's enduring question now in the hope that the overriding authority over our natural resources granted to the federal government by the Constitution will not be misused or eroded during your tenure.

Respectfully yours,
Kate Brisack

Update: Clean Power Remand Cert. Denied

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Yesterday, the Supreme Court issued a new list of orders in which it denied certiorari review, without explanation, to the case of Michigan v. EPA, which concerned whether the Agency unlawfully refused to consider costs in the promulgation of its Mercury and Air Toxics Standards pursuant to the Clean Air Act. It had already heard the case once last year, ruling in favor of Michigan and other industry petitioners, but sent the matter back to the D.C. Circuit without explicitly vacating the MATS.

The Circuit, led by Judge (and future Justice) Garland, accordingly allowed the MATS to remain enforceable until new guidelines were issued by the EPA. Michigan accordingly took the matter to Chief Justice John Roberts, who denied their indignant stay application of his own accord without referring the matter to conference. The ensuing full petition was also rejected in a one-line order on Monday - this is most important because it signals that no four Justices thought Michigan's position was meritorious enough to warrant a hearing, a fact that could bode well for the rest of the Clean Power Plan when West Virginia v. EPA is heard at the beginning of next Term.

This could also indicates a shift in the Court's perception of equitable relief. Since the petitioners' demands in the first Michigan fall under the purview of traditional equity rules, the courts are given greater latitude to consider the greater good when deciding on these claims. The D.C. Circuit exercised that chancery jurisdiction in this case, concluding that the benefits to citizens' health and welfare - up to 11,000 instances of premature mortality prevented annually, as well as 4,700 cardiac emergencies and 250,000 instances of respiratory illness every year - outweighed the burden that regulatory compliance places on the energy and manufacturing industries. As was said in 1947, "a strong showing is required, both of inadequacy of the prescribed procedure and impending harm, to permit short-circuiting of the administrative process," and the petitioners failed to prove that any impending harm caused by the case would adversely impact them. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752. By allowing that determination of the D.C. Circuit to stand, the Supreme Court renewed what the respondents called the tribunal's "longstanding reluctance to displace traditional equitable authority absent the 'clearest command' or an inescapable inference' to the contrary." (Citation omitted). In recent years, such deference to administrative discretion and the principles of equity has been rare, but as this denial shows, the reversal of that trend could be imminent.

The mere denial of a cert. petition is rarely treated with the same weight as a full decision, and even this acknowledgement of citizens' interests and the EPA's authority cannot fully erase the damage created by the Michigan precedent. However, the changing Court and the changing political climate inevitably move American jurisprudence forward, and we at PlanetGreen believe that someday the natural world will receive the respect from the judiciary that Justice Douglas once famously declared it deserved:

"So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction." Sierra Club v. Morton, 405 U.S. 727 (1972).

Our earlier coverage of this case, both a preliminary statement of the issues and a personal perspective.

Reversed and Remanded - and Reversed

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Last year, in Michigan v. EPA (14-46, 576 U.S. 14), the Supreme Court ruled that the EPA incorrectly neglected to thoroughly consider the economic costs of its lifesaving Mercury and Air Toxics Standards (MATS). Expanding on that ruling, the Court deviated from its usual procedure and granted an application to stay enforcement of Obama's Clean Power Plant just last month.

Now, just yesterday, Chief Justice Roberts unexpectedly denied Michigan's request to stay enforcement of the MATS. After the Supreme Court handed down its ruling in Michigan, the cause was remanded to the D.C. Circuit, which (in the petitioners' words) "refused to vacate the unauthorized Rule, and instead left it in place with the effect of binding law." On Thursday, one of the S.C.'s most conservative members declined to take any action on that.

This case is important to the entire legal and environmental community, but it is also personally relevant to me. Ever since the certiorari petition was filed in Michigan, I had followed that case intently, and when it was granted I attempted to write and file an amicus curiae brief in support of the respondents. I was fourteen years old at the time, as enthusiastic as I was inexperienced and still more than a decade away from satisfying the S.C.'s bar admission requirements. My chances of procuring consent to file the brief were exceedingly slim.

The chances of everything that happened next were even slimmer.

I had listened to the recordings of almost every Supreme Court oral argument for years, but my familiarity with the cases and advocates only made it more surreal when I made one last phone call and, much to my surprise, found myself talking to Roman Martinez about the bar-admission situation. Far from dismissing my brief, as I fully expected, he took the time out to write me over the course of the next days, forward my pleading to Solicitor General Verrilli, and even invite me to attend the hearing.

The respondents' argument, on March 25th of 2015, was among the most forceful and engaging presentations I have read or listened to. General Verrilli opened for the EPA, carefully navigating hostile questions from Chief Justice Roberts and Justice Kennedy before launching into an accessible, cohesive explanation of the rules' background and effects in a manner strongly reminiscent of Louis Brandeis' renowned Muller v. Oregon (208 U.S. 412 (1908)) brief. To conclude, he outlined the EPA standard for reasonable administrative action, and deftly dealt with the preclusion undertones B&B v. Hargis had introduced. Then Paul Smith took over, speaking for industries supporting the regulations. He dealt mainly with the more technical aspects of the EPA's studies before subtly and effectively invoking the mootness question by describing how the majority of emissions sources had already implemented the MATS.

The decision in the case did not come down until June 29th, the last day of the Term. The D.C. Circuit's earlier ruling in favor of the EPA was reversed and remanded without vacatur 5-4, the late Justice Scalia speaking for the majority. The Circuit, pursuant to that disposition of the case, allowed the MATS to remain in force until the Agency was able to update them taking costs into consideration. Subsequently, Michigan et al. sought this stay of the rules, employing the preclusion and mootness angles to make their claims appear urgent. These arguments, however, were just sanctioned by Roberts in his denial of their application, unexpectedly strengthening administrative discretion instead of weakening it further.

Through all the twists and turns of this case, from the excitement of a pending litigation to the disappointment of what appeared to be final defeat and, now, to Roberts' surprising decision to render the earlier opinion unenforceable, I remain extremely grateful to everyone at the Department of Justice, and especially to General Verrilli and Mr. Martinez, who allowed me to feel like a small part of this unforgettable ride. Thank you for the incredible experience I call my first case.

K letter.png(Katrianna posted the text on this entry and left out this image, so I went maverick on her and added it. -Her big sister)

S.C. Gives Free Rein to Corporate Polluters

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opinionpic.jpgJust last Tuesday, the U.S. Supreme Court surprised the legal community by issuing a preliminary injunction to stay the enforcement of sections of the Clean Air Act and the EPA's corresponding regulations. This stay effectively renders our government powerless to stop the release of hazardous substances into federal airspace for as long as there are still legal challenges pending in the courts. Although the Court treated this unexpected move as a routine procedural nicety, in reality its effects on both the atmosphere and the law could be disastrous.

Penny Pinching

It all started last June with Justice Scalia's opinion for the Court in Michigan v. EPA (14-46), in which the Agency was chastened for not adequately considering costs when promulgating these lifesaving rules. As the learned tribunal put it: "By EPA's logic, someone could decide whether it is 'appropriate' to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system." (576 U.S. __ (2015)).

However, this comparison entirely ignores the vital importance of controlling these pollutants. By the EPA's uncontested estimate, the regulations could prevent up to 11,000 instances of premature death and 130,000 respiratory attacks annually. In the natural world, they would also reduce acid rain (caused by the toxic gas hydrogen chloride, eighty-two percent of which can be traced back to power plants) and the poisoning of fish in our waterways (caused by mercury, which if ingested in fish tissue can cause cancer and irreversible birth defects).

The most conservative quantification of these restrictions' costs and benefits places the resulting national profit at $24 billion dollars. This estimate leaves out environmental preservation, untreated medical conditions, and increased agricultural productivity altogether, and for those reasons it cannot be claimed that the EPA thoroughly considered costs. Yet it remains abundantly apparent that administrative action on this literally life-or-death issue is hardly an indulgence to be indefinitely invalidated by an injurious injunction

Furthermore, the order is formally known as an interlocutory or "temporary" injunction, but its unusual lack of an expiration date will only encourage corporations to pursue frivolous and expensive lawsuits against the government in the attempt to extend the ruling indefinitely. In all probability, industry lawyers will be able to make this sanctioned lawlessness last until our next President takes office - and, unless a genuine liberal does manage to overcome the odds, this one simple measure could result in the undoing of one of this country's most crucial regulatory frameworks.

So Much for Equity

Throughout our American history, the injunction has been used repeatedly as a tool for the repression of citizens' voices and the circumvention of constitutional principles. Notable examples include In re Debs, (158 U.S. 564 (1885)), in which the Pullman strike was brutally crushed through the use of such a decree, or Walker v. Birmingham, (308 U.S. 307 (1967)), in which it was held that civil rights demonstrators were lawfully imprisoned pursuant to an order prohibiting a planned march. However, it is important to note that these results do not characterize the injunction as an institution, but rather mark a departure from its historical role.

Much of this nation's legal tradition is inherited from ancient English customs, one of which is the dichotomy between general and equity jurisdiction. The first closely resembles our modern conception of civil procedure, in which the law governs the facts and stare decisis is closely followed. The second, however, was a kinder and gentler version of the judicial process, designed more to ensure fair play than strict adherence to statutes. These cases were adjudged by the Lord Chancellor, (hence the name "chancery" jurisdiction), who was almost always a cleric, and therefore the decisions were heavily influenced by canon law and the dictates of conscience. By the 16th century, this method of decision-making was already deeply entrenched in British political culture, and therefore the Reformation did not significantly alter the function of equity courts. This arrangement even accompanied our ancestors across the Atlantic, and lasted in both countries until the widespread overhaul of the judiciary in the mid-1800s.

Even after the two systems merged, however, the special reasoning was preserved to some extent. Because common-law cases and their chancery counterparts were sometimes hard to separate under the new rules, the relief pleaded for became the main way to differentiate the two: monetary damages, which were and still are the standard form of redress, or declaratory and injunctive remedies, a more abstract solution with its origins in equity.

This is important because the complainants in these new challenges to the Clean Air Act and associated regulations are actually seeking equitable relief, but the Supreme Court's preoccupation with technicalities is contrary to the cardinal principles used to determine this variety of case. In traditionally equitable causes, courts are still justified in prioritizing social welfare and substantive justice over strict adherence to rules. As Blackstone observed in his famous Commentaries, "Equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, Equity is synonymous with justice; in that, to the true and sound interpretation of the rule." 3 B.C. 429. This interpretation has been confirmed repeatedly and resoundingly in our common law. In the landmark decision West Coast v. Parrish, we find: "The liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." (300 U.S. 379 (1937)). As Justice Holmes observed in 1896: "The true grounds of decision are considerations of public policy and social advantage, and it is vain to suppose that real solutions can come from... propositions of law which nobody disputes." Vegelahn v. Guntner (167 Mass. 92).

I remember Justice Jackson once said: "If ever we are justified in viewing a statute not narrowly as through a keyhole, but in the broad light of the good it aimed for and the evils it hoped to prevent, it is here." U.S. ex rel Marcus v. Hess, 317 U.S. 537 (1943). Given the countless human lives and priceless natural resources at stake in these circumstances, that statement seems equally apposite now.

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