'Environmental Justice' or Crude Power Politics?

On September 28, a category 4 hurricane struck Florida, destroying many communities on the Southwest coast, knocking out power for millions of people, and causing devastation. Estimates are that it will cost more than $50 billion to clean up and rebuild.

Speaking in the immediate aftermath of the storm, vice president Kamala Harris intimated that, in the distribution of aid, poor people and ethnic minorities would be prioritized, because it is the “lowest income communities, and communities of color that are (most) impacted by these issues.” With the hurricane raging, there was shock, and significant pushback against this blatantly racialist statement, since it is (still) widely understood that weather does not discriminate, and colorblind need should be the only criterion for aid.

Both Florida’s governor, Ron DeSantis, and the head of the Federal Emergency Management Agency (FEMA) immediately announced that no racial standard would apply. But for all the criticism, and assurances that the aid will be distributed by need, Harris and the Biden administration will have the last laugh. As it happens, on September 24, Michael Regan, the (first black) head of the Environmental Protection Agency had announced the creation of a new national office of environmental justice in his agency. (There are smaller offices of environmental justice larded throughout several other agencies, and there has been a small office for this at the EPA for decades.)

This new office will be funded with billions of dollars allocated in the deceptively named Inflation Reduction Act. These billions will be available to groups that cater to minorities and low-income communities. The office will effectively be funding both left wing "climate change" activists and black activist groups informed by "Critical Race Theory."

And learn to spell.

The EPA was created by president Nixon in 1970, to establish and run major environmental and anti-pollution programs, many of which were actually needed at the time. Those founding concerns included the despoiling of nature with toxins, polluted lakes and rivers, and especially smog and industrial pollution in our cities. Between 1970 and 1990, more than a trillion dollars was spent on combating these issues, 60 percent of which went to urban area cleanups, many near low-income neighborhoods. The EPA was so effective that it essentially put itself out of work.

Nevertheless, it persists. In 1994, a mere quarter century after its founding, Bill Clinton used an executive order  #12898 to insist that the EPA inject the then-new concept of "environmental justice" into its mission. That was on top of the need to incorporate the tenets of Title VI of the Civil Rights Act of 1964 into the redress of pollution, which was already part of the mission statement. This is ironic, because Title VI states that the recipients of federal assistance (states, cities, etc) cannot discriminated by race and the usual other considerations. As a practical matter, though, "environmental justice" is all about discriminating in favor of certain minorities and the poor. As is the entire "Equity" agenda added by the Obama and Biden Administrations.

So the insertion of racial and class matters into environmental policy is not new. The EPA has been handing out "environmental justice" grants for years. But they have been relatively small, in the $25,000-$50,000 range. Most have gone to local community projects, often with an employment-training aspect for local youth or recent parolees. What is new is the magnitude of the funding, and, therefore, the resultant actions likely to ensue.

The Office of Environmental Justice at the EPA will now be the locus for some $47.5 billion, which the federal government will be spending on "environmental justice" priorities. There's another $13 billion in block grants for community-led projects, meant to empower low-income communities of various races, from urban blacks to Native Americans. Then there is another $15 billion for greenhouse gas reduction in "disadvantaged communities." So, that’s $90 billion before you even get to tax credits  for solar and wind power in the projects. The money is accompanied by a complicated Equity Action Plan, mandated by Biden’s executive order 13985, which sets up many ways to get money to "underserved communities." And yet, many environmental groups think this is insufficient.

Such astonishing profligacy with taxpayer money is not only an opportunity for graft, theft, and pure corruption, but also a mechanism for flooding low-income districts, and the activists and organizations within them, with cash, in the name of creating "equity" in face of "climate change." What does "injustice" in face of "climate change" actually mean? TOne "environmental justice: argument is that it is hotter in poorer neighborhoods because there aren’t as many trees and parks. Should we then be spending these billions on landscaping at public housing projects and Section 8 developments?

Then watch the cash roll in.

That seems frivolous when many of the country’s large urban low-income housing projects suffer from far worse problems than lack of shady groves for lounging in summer heat. Mold, blight, structural problems, flooding, rodents, non-working elevators, and crime all seem more urgent. But money used for remediation, which the Trump administration did via the Department of Housing and Urban Development, doesn’t signal virtue, or spread money to the activist left.

This looting of taxpayer dollars to enrich favored racial/class groups and "climate change" activists, has had one useful function: revealing the real game. That racket is all about the use of state power to reward allies and favored voting blocs. Nothing will come of this money as it is earmarked. There is no stated environmental policy by which to measure the utility of dollars spent. Weather will continue to affect everyone, white or black, in its path. This hundred-billion plus is just a boon to those who hand it out and those who receive it. It reduces the woke concern with climate to its crudest form: money. 

About that 'Greenhouse Gas' Provision...

If you write a news story about a significant piece of legislation relying heavily on its proponents—or worse, your own ideological interests—you are likely to overstate their victory. That is precisely what the New York Times did when it contended recently that the misnamed Inflation Reduction Act explicitly [gave] the EPA the authority to regulate greenhouse gases:

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month, is language written specifically to address the Supreme Court’s justification for reining in the E.P.A., a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the E.P.A. the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar and other renewable energy sources.

Hi! I'm a carbon-based life form!

Except it didn't. Nor did it  grant the EPA “the broad authority to shift America away from burning fossil fuels.” How did such a common compound on this planet—we are, after all, carbon-based life forms and exhale CO2 with every breath we release—come to be considered a pollutant anyway?

To understand the issue better, here’s a brief history showing judicial and administrative rulings that carbon dioxide (naturally emitted by oceans and land and relatively very little by humans) is a pollutant and the extent to which the EPA. can regulate its emission.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the Environmental Protection Agency has the authority to regulate  greenhouse gas (GHG) emissions if it determined that the emissions endangered public health. A few years later the EPA, acting under the Clean Air Act, determined that there were six gases that posed a danger to public health and welfare.

That determination was challenged in court and in 2014 the Supreme Court upheld only part of the EPA’s determination in Utility Air Regulatory Group v. EPA. The Court’s majority held that the agency had authority to regulate emissions from large stationary sources such as power plants, but had overstepped its authority when it tried to use the Clean Air Act to regulate smaller stationary sources. More important, the court held that the “air pollutant” language  referred to regulated air pollutants and not greenhouse emissions.

So am I!

The  next most consequential ruling on the Clean Air Act and the role of the EPA was the recent  West Virginia v. EPA decision, issued at the end of June, in which the court rejected an expansive reading of the EPA’s authority. A critical element in the majority opinion was that Congress never explicitly granted the EPA authority to regulate greenhouse gases. In an effort to get around the limitations imposed in that decision by the Supreme Court, however, the Biden administration tried to slip language into the Inflation Reduction Act in order to claim that they had now overcome that restriction on the EPA’s reach and legislatively permitted the agency to regulate greenhouse emissions (CO2) from power plants.

In what has become known as the “major questions doctrine,” the court has adopted a more stringent approach to how it interprets laws that gives much less deference to the views of experts at the federal agencies charged with implementing complex, dynamic regulatory programs designed to protect public health and safety... Roberts made clear that Congress could choose to pass more detailed legislation granting EPA the authority at the heart of the case if it wished.

The Inflation Reduction Act amends the Clean Air Act to add seven specific new programs to reduce greenhouse gases and provide funding to the states to develop their own plans. Taken together, these provisions go a long way to address Roberts’ concern that Congress has not spoken plainly enough about EPA’s authority to tackle climate change. But it falls short of granting EPA the authority to revive the generation shifting approach of the Clean Power Plan.

Me too!

Why didn’t it do so? Because it could not. To ram this bill through the Democrats used  the budget reconciliation provision and a bill passed this way must be “closely tired to spending, revenue and the federal debt limit—it cannot set broad national policy.” The Times, largely relying on the statements by the act’s advocates, thinks they succeeded, but more reasoned commentators dispute that, and I think they, not the NYT, are right. In particular the analysis by Professor Jonathan H. Adler is far more persuasive. The IRA, he writes:

does not grant the EPA new regulatory authority with regard to GHGs. Nor does it address the Supreme Court’s reasons for rejecting a broad view of EPA’s regulatory authority in West Virginia v. EPA. Nor is it quite accurate to say the IRA "amends the Clean Air Act . . . to define the carbon dioxide produced by the burning of fossil fuels as an 'air pollutant.'" Nothing in the IRA modifies the CAA's existing definition of air pollutant in Section 302 of the Act.

Yes, there are several section- specific mentions of greenhouse gases but the language used doesn't address the issues in the West Virginia case  Whether greenhouse gases are air pollutants never was a factor in that decision. Taking sharp issue with the NYT article, Adler notes,  “[I]t is suggested that because these provisions define greenhouse gases as a set of air pollutants, this makes clear that GHGs may be considered air pollutants under the Air, and this will be ‘a powerful disincentive to are lawsuits.’ Don’t bet on it.”

The point is that simply because something is defined as an “air pollutant” in one section of the Clean Air Act, it is not necessarily one under other of the Act’s provisions. The “definitional provisions in the IRA are “section-specific," not of general application so that GHGs may be air pollutants for  “some provisions,” but not all of the Act. Because this is so, Adler sees in the IRA no barrier to state challenges to EPA regulations of GHGs. He has a further criticism of the NYT article.

The story claims that the EPA’s 2009 conclusion that GHGs could be reasonably anticipated to endanger health or welfare "'meant carbon dioxide could be legally defined as a pollutant and regulated.' This is backwards. It is not that something must be considered dangerous before it can be considered an air pollutant under the Act. Rather, if something is an air pollutant (because it satisfies the Act’s definition, which does not require dangerousness), then the EPA may regulate that pollutant under certain CAA provisions if the EPA subsequently concludes that emissions of that pollutant cause or contribute to air pollution that may endanger health or welfare. In other words, just because something is an air pollutant under the Act does not necessarily mean that it is dangerous or that the EPA can or must regulate it.

Why do you hate us?

Yes, the EPA may well try to use the IRA to regulate carbon dioxide from coal plants, although the agency should ultimately lose because it lacks specific Congressional authority to do so. Of course, the bureaucrats can cause a lot of damage in the meantime. 

How much can still be constrained. Senator Shelley Moore Caputo of West Virginia cut $45 million  from the IRA which she argued would have expanded the EPA’s authority and that violated the rules respecting content of budget reconciliation bills. That she prevailed on this score adds to the contention of those disputing the NYT account; nothing in the IRA expanded EPA’s authority to regulate power plants. Nor could it under a budget reconciliation bill. But watch them try.

Diary of an Acclimatised Beauty: Protesting

With very little planning and a last-minute text to my parents, I hopped a flight from London City Airport to Washington D.C. The reason, of course…to save the planet! With no lounges open, and the risk of delayed takeoff, I thought I should at least grab a bottle of water, and so I did. Hello Boots… one Volvic please!  Only to be reminded that London had launched  something they are calling ‘Plastic Free City’.

They sold me the water alright, but it came with stares from all the really good people—each one of them making silent commentary, and staring at the offending bottle. You’d have thought I’d been going round the globe shoving plastic straws into the brains of dolphins.

Meanwhile, they kept flaunting their refillables like they were iced-out Rolexes. Oh knock it off! I wanted to scream. My entire life is dedicated to green pursuits but when it comes to placing the mouth of a bottle that I’m going to drink from, under the spigot of the community trough—I draw the line. Besides I can’t very well save the planet if I am sick.

Every litter bit helps!

The terminal was lined with bright blue water stations, and I walked to my gate with the gurgle-gurgle of people refilling all around me.  Luckily I had only thirty minutes before boarding and so I stuffed the contraband into my bag before choosing a spot in which to loiter. The airport was mobbed and every announcement was getting on my last nerve. Just then a text from my client…

‘Can we fix this?’ Followed by a picture of the detritus from the Glastonbury Climate Festival. It was disgusting—trash and abandoned tents everywhere. It looked worse than a San Francisco public park. 

‘What is it you WANT me to do?’ I texted back.  And before he could respond I texted: ‘Headed to DC…boarding now’.

I could see he was trying to text me something else but I powered down my phone before it came through. Having found my seat I tore off the plastic wrap from my quilt and put my headphones on. I placed the wrap within easy reach of the flight attendant but despite several passes she didn’t pick it up. Why is the whole world plastic-shaming me today?

When we arrived in D.C. our gate wasn’t ready and we had to be towed in. Another delay! I know that towing vs taxiing saves quite a bit of fuel but this delay defeats the purpose of flying from City Airport!

As soon as I powered on my phone the texts started rolling in. Apparently, if you sign up for even one protest they assume it’s your lifeblood and include you in every update. I only wanted the EPA protest. What a mess.

That's telling 'em!

My driver did his best to get me right where I needed to be but it was hopeless. Pride marches, GenX, and half a dozen abortion marches. Finally, I headed toward a group in green bandanas knowing this would be my group, but it was not. This was made readily clear by a “Viva la Vulva” sign. I stepped out of the throng and asked a woman why green for pro-abortion?

‘Marta tells us that the colour of nature was chosen because it signifies life’, she said.

Abortion means  life? I dared not ask. And who was Marta? Turns out Marta is the founder of Catholics for Choice, 'a nonprofit organization that lifts up the voices of the majority of Catholics who believe in reproductive freedom'. I squinted my eyes and walked away.  So far I had accomplished exactly nothing.

Then my phone rang. It was my father.  ‘OH HEY!’ I said, yelling into my iPhone.

‘Are you at a club?’ he asked.  

‘You bloody well know I am not at a club!’ I responded. I am in Washington, protesting the EPA ruling!'  

‘Well how’s that going?’ he asked.

‘I haven’t found them yet… this is all rather confusing. But I do have a question, I got a text about the Glastonbury Climate Festival… I see electric- car chargers in the middle of… nowhere. So how do they get powered?’ 

Diesel’, Daddy replied.  

Glastonbury '22: nobody tell Greta!

Diesel??’ I shrieked. ‘How does…?’ UGH! I knew he was stifling a laugh. 

‘Yes, as you said, all very confusing. Listen, sweetheart, do you really think protesting is a good use of your time…?'

‘How would I know?  ‘I haven’t even been able to even locate my protest'.’

‘Strange that, Marxists are generally so good at organisation’.

I didn’t have the strength to fight him. It was beginning to rain and I decided to keep quiet in case he had one more zinger in him.  FINALLY I could see my EPA group and I ran to catch up with them, only to ask myself why had I bothered? I was sweating under my trench, my shoes were soaked, we all looked stupid, I felt stupid—this was stupid.

‘You win, Daddy', I said into the phone. 'This was a dumb idea. I will schedule some meetings and ask my clients how I can be useful while I’m here’. 

‘Excellent', he said. 'And you might advocate for the continued operation of Line 5 up in Michigan —it's an essential  pipeline for Eastern Canada and the U.S.’ 

‘And they will listen to me because—why?’ I asked. 

‘Because you’re the voice of reason on this. It’s a win for everyone.  And you’re still advocating for the environment - just without the Marxist slant’.

‘And if it doesn’t work?’

‘Oh, just tell them they’re all going to freeze—they don’t even have enough energy to get through next year…’

‘I don’t think they want to hear that’. 

‘Oh I disagree, Jennifer. Fear-mongering is the only thing you green-niks understand'.

I hung up and looked around. The rain was pelting harder. Everybody looked miserable. And they wonder why I never bring anyone home!

Another Big Win: the Court Clips Regulatory State's Claws

On its last day of the current session the Supreme Court by a 6-3 majority finally clipped the talons of the Environmental Protection Agency, denying the agency power to issue broad regulations regarding "climate change." In the process, the Court sent a warning shot to the administrative state and Congress: legislation on broad matters (“major questions”) must come from the legislative branch (Congress), not from the executive branch via "regulation." The decision upends decades of government rule by D.C. bureaucrats, a practice set in operation by Franklin D. Roosevelt who created and empowered some 70 offices and agencies under presidential control. The EPA was established by Richard Nixon in 1970.

The Supreme Court ruled Thursday that federal regulators exceeded their authority in seeking to limit emissions from coal plants in a decision that sharply curtails the executive branch’s authority to make policy actions on a range of issues without congressional direction. In a blockbuster 6-3 decision penned by Chief Justice John Roberts, the court said the Environmental Protection Agency had overstepped when it devised the Obama-era regulatory scheme, known as the Clean Power Plan. The plan had been challenged by West Virginia and others.

The court said that when federal agencies issue regulations with sweeping economic and political consequences—in this case, rules to address climate change—the regulations are presumptively invalid unless Congress has specifically authorized the action.

The case, which must certainly be electrifying the D.C. poohbahs, is West Virginia, et al v. EPA et al. It is a clear threat of a continuing unraveling of the administrative state. How big a deal is this? Far bigger than the earlier decision on abortion (Dobbs v. Jackson), which simply returned the power to regulate abortion to the states. This decision, however, does something arguably even more important to our democracy: it forces Congress to start taking its job seriously again.

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The case began six years ago and has continued through a series of shifts occasioned by a change in presidents, traveled upward to the Supreme Court following a number of court proceedings ,and clarified the capacity of affected parties to sue in the face of indefinite suspension of the regulation to which they object.  The issue was first joined when the Obama administration's EPA issued a plan for reducing carbon dioxide from power plants. Under this "Clean Power Plan," plants would get credits for generating more power from lower-emitting sources. A coalition made up of states and coal companies sued on the ground that the Clean Air Act, the purported authorization for these regulations, gave the EPA only authority to restrict pollution at steam-generating coal power plants, not to require power companies to adopt the government's choices of fuel.

Not so tough anymore.

The Supreme Court blocked enforcement of that rule. Then President Trump changed the rules. Under his administration EPA could only regulate emissions from individual coal-fired steam plants (the Affordable Clean Energy Rule). This shift was challenged by a different coalition made up of environmental groups. The new rules were struck down by the U.S. Court of Appeals for the District of Columbia, leaving the area open for the Biden administration to act.

It was feared the new administration would simply resurrect the earlier Obama approach and require a shift to so-called "renewables." As you might expect, leaving such matters to administrative agencies creates a kind of legal roller coaster, the very sort of thing impossible to contend with in industries that require extensive planning and tremendous capital outlays. Such a fear prompted this case. The West Virginia-led coalition contended that the EPA was seeking to dictate “the big picture of how the nation generates its electricity.” Which was, of course, true.

Like the abortion ruling in Dobbs, this decision is a return to federalism. In Dobbs the power to regulate abortions was returned to the states. In this case the power to regulate power plant fuel is returned to Congress. Imagine congressional debates and action now, in an era when "climate change" polls poorly, and will continue to do so because the costs—the price of gas, home heating, all transported goods—continue to rise as a direct result of  the energy constraints of this fantasy. The responsibility for such nonsense and the pain consumers endure would be squarely on them.

Senate majority leader Chuck Schumer, doesn’t have to imagine.  He knows this is a disaster for his party. With a paper-thin majority in both houses (one currently in jeopardy in the tied Senate as senator Patrick Leahy currently is sidelined with a broken hip), a predicted red wave in November, and the country already in a recession, passage of a law to  curb inexpensive energy in order to meet a posited "climate emergency" is not likely.

Pelosi and Schumer: over a barrel.

Politico reports:" Senate Majority Leader Chuck Schumer said in a statement that 'just like last week’s dangerously misguided and abhorrent decisions on gun safety and abortion, the extremist MAGA Court’s ruling today in West Virginia v. EPA will cause more needless deaths — in this instance because of more pollution that will exacerbate the climate crisis and make our air and water less clean and safe.'" It's more likely, in my opinion, that the decision will lead to fewer opportunities for graft and the deaths of some Democratic careers. As professor  Jonathan Turley tweets,  

It is a curious sight of a congressional leader denouncing a decision that prevents the circumvention of Congress. It is a virtual statement of self-loathing like a player complaining of being sent back into the game by the coach... This is not the first time that Democrats have called for a president to usurp the authority of their own branch. It undermines the faith held by figures like Madison that ambition would combat ambition in the protection of the separation of powers.

Of course, in reality they are not complaining that they’ve been given more power. They know their side is not in a position to deliver what its green base demands. How far from reality is the Democrat saber rattling on this issue? This far according to Politico:

 Congressional Democrats whose efforts to pass legislation to fight climate change have been blocked for years — both by Republicans and, more recently, by Democrats’ own troubles unifying their razor-thin Senate majority — said their party must take action in response to the Supreme Court’s decision. However, the party has so far failed to garner the 50 votes in the Senate needed to move climate legislation amid resistance from West Virginia Sen. Joe Manchin, and supporters see the next few weeks as the last chance to pass a measure.

It's not just the EPA which should be drawing in its belt. This is a significant reduction in the power and grasp of the administrative state. Professor Jonathan Adler notes: "This is also a warning for other federal agencies, including FERC and the SEC. It makes clear that if the federal government is going to take meaningful action to mitigate the threat of climate change (as it should) that action will have to come from Congress."

The Democrats can see the political chessboard as clearly as can I, that’s why you won’t see any debate on "climate change" legislation this year. Instead they’ll be demagoguing about packing the Supreme Court, something even their idol FDR was unable to pull off. Anything to avoid accepting public accountability, and thus scrutiny, for their actions.

Drinking, Drowning From the Regulatory Firehose

Recently, I had occasion to speak with a friend who works for the E.P.A. He commented on the changes in his job under the current Administration using this phrase: “we’re being asked to drink from a firehose.” Within the context of the conversation, the meaning of his message was clear. It wasn’t a complaint as much as it was a compliment. Whereas the Trump administration had chocked down hard on the plumbing of environmental regulation, the Biden administration has opened the stopcocks as fully as possible. “Drinking from a firehose,” from my friend’s point of view, was a metaphorical way of saying that my friend would never lack for something to do under the Biden administration.

I do not begrudge my friend his choice of making a living, Nor do I begrudge him a particular world-view that may – in a particular opinion – place unintended and unearned weight on propositions I believe to be at least somewhat faulty. My friend may be right in part or in whole, just as I may be. My personal obligation as a member of the human community is to constantly and objectively re-assess what I believe to be the truth and to relate the truth as I understand it to be as clearly and concisely as possible, without resorting to personal animus, unless of course resorting to animus elicits a cheap laugh or two.

Broadly-speaking, Donald Trump’s political opponents in both politics and the press defined Trumpism’s attitude toward the entrenched bureaucratic class as both assault and battery. In the case of the government’s role in environmental protection, Democrats and their mainstream media allies essentially painted Trumpism in colors that were certainly not reliable shades of green, but were decidedly smears of a soiled, brownish hue. According to them, President Trump did not really want to restore some balance to the entirely worthy propositions of environmental protection and economic equity, which is essentially how he and his supporters defined their mission in these areas. Instead, the President’s opponents insisted that he was determined to sabotage the supposedly fragile purity of the environment in order to supposedly protect sordid, favored economic interests.

Trumpism, as seen by the Left.

When dealing with this and virtually any other part of what has become known as “the swamp” of the entrenched ruling class, the ultimate message of Trumpism is to say: “bureaucrats, know thy proper place!” Biden, or more likely Biden’s handlers, have replied with an angry, more defiant message: “Bureaucrats, assume Thy Rightful Place!”

What might appear at first blush to be roughly equivalent themes are, upon closer examination, not even closely related. The attempt to limit bureaucracy  to its most advantageous mode of behavior and no farther is simply about understanding the proper role of bureaucrats in an increasingly complex world. The attempt to make bureaucracy immune from censure is about surrendering the rights of the governed to the frozen, unemotional “wisdom” of a governing class. It's about further empowering power, not about monitoring the equitable and therefore wise distribution of power.

Truly representative government thrives from – nay, demands – challenge from within. This is common ground that bitterly-opposed political theorists like John Adams and Thomas Jefferson were willing to cede to the other. Each was a towering figure who influenced and continues to influence the direction of this marvelous experiment of a nation in proportions that go far beyond the number of years they were citizens of it.

Adams foresaw a nation that relied upon centralized principles and authority. He believed that federalism (as then defined) was necessary to maintain a consistence of purpose that would in turn ensure its continued success. Jefferson foresaw a nation that relied upon decentralized thought and discovery. He believed that democratic-republicanism (as then defined) was a necessary perquisite to the survival of the Republic. What we now know as America remains essentially an amalgam of these contrary, yet complimentary, points of view.

What united Adams and Jefferson – until what was literally their mutual dying day: July 4, 1826 – was the revolutionary idea that it might be possible to create a system of governance that would allow the governed to retain some degree of power over those engaged in governing.

Adams tended toward the republican ideal of representative government, which demanded a certain standard of care among those privileged to represent its citizens. Jefferson tended toward the more purely democratic ideal of representative government that demanded no more of a representative than assurance that he or she continued to breathe. In hindsight, neither Adams nor Jefferson was wholly right, nor was wholly wrong. One can reach the peak of Everest via the Southern Col or the Northeast Ridge. Each has its perils. What really matters is getting to the summit, not how you got there. Though they chose different paths, Adams and Jefferson were united in their vision of their summit of representative government.

Ah, heaven on earth...

Our goal, as both the supervisors of our republic and those who are supervised by it, ought not to be so concerned whether the vision of Adams or Jefferson prevails almost two centuries after they've passed on. We should rather concern ourselves with the proposition that the intellectual heirs of both Adams and Jefferson have abdicated their responsibilities, turning over more and more power to faceless minions accountable to no one but themselves.

President Trump showed it was possible to drain at least some of the swamp, despite the fierce response that doing so elicited among many of the fierce creatures dwelling there. Sadly, the current administration seems to determined to refill it until we drown. We can, and we must, resist these denizens of the deep.

GOP Asks the Supes to Bring the EPA to Heel

It's about time:

The Supreme Court on Monday considered whether an Obama administration regulation to regulate carbon emissions from existing power plants gives the Environmental Protection Agency such authority. Coal companies and several Republican states, led by West Virginia, want to limit the Clean Power Plan from 2015 that never took effect due to a volley of lawsuits. If the Supreme Court were to rule against the EPA, the move would restrict the agency's ability to control climate-warming carbon emissions based on health, workplace safety and other conditions.

So what's the fuss all about?

During over two hours of oral arguments, the justices focused on how to interpret Section 111 of the Clean Air Act, the statutory source of the federal government's authority to regulate emissions from power plants. The states and coal companies prefer a narrower reading adopted by the Trump administration. That interpreted Section 111 as only allowing requirements at individual plants rather than regulating the industry, as the Environmental Protection Agency intended during the Obama administration by offering power plants credits for generating power from sources that emit less carbon dioxide than coal.

Many of these troublesome agencies date from the Nixon administration, which in 1970 unleashed not only the Environmental Protection Agency but also OSHA on an unsuspecting American public. Unconstitutional from the start, these meddlesome bureaucracies quickly took on their primary task, which was empire-building. As the U.S. has moved from a constitutional republic to a regulatory state, civil liberties have been corroded and diminished, and control has been ceded from the popular will of the people to the entrenched bureaucracy based in Washington, D.C., but with tentacles now firmly grasping all 50 formerly sovereign states.

Such beasts have been a godsend to the lawfare crews of the left, which can sue private companies out of existence for falling afoul of this or that "interpretation" of what Congress half a century ago "meant" in irresponsibly establishing quasi-immortal fiefdoms whose primary task would be self-perpetuation, since the problem it was created to address could, in fact, never be solved.

The current fight is among the Obama, Trump, and Biden administrations and their civil-service drones; as each party succeeds the other in the White House, the rules change and change back, keeping the lawyers happy and the paper-pushers busy but otherwise accomplishing nothing.

The Obama administration had planned to require states to lower carbon dioxide emissions by replacing coal power plants with green energy sources. About 62% of U.S. electricity comes from burning fossil fuels, according to government statistics. According to the EPA, electricity production is the second largest source of greenhouse gas emissions in the United States, behind transportation.

West Virginia Solicitor General Lindsay See told the justices they should overturn a federal appeals court decision saying the EPA could issue such plans. See argued that only Congress has the authority to set energy policy. "This is a major question because it is a new exercise of authority and a transformative result in an area of traditional state authority," See told the justices.

He's right of course. But Congress has long since abdicated its core legislative functions, preferring instead to create monsters such as the EPA in its Laboratory of Democracy and then leave the details to others while the Capitol Hill solons scheme for ever-higher electoral office. Every one of them dreams of being the next Nancy Pelosi or Mitch McConnell. And given that a lifelong hack like Joe Biden now sits in the Oval Office, they can dream, can't they?

Meanwhile, the rest of us suffer. And pay.

Will the Supreme Court Nip the EPA Next?

Too many people judge Supreme Court actions on whether they agree with the outcome, without reference to how the Court said it reached that outcome. Many who cheered when the Court kept the Trump administration from asking citizenship questions on the census cannot be happy with the recent decision respecting vaccination mandates and may be even more unhappy when the Court resolves three challenges to the Environmental Protection Agency’s (EPA) regulations on power plant energy production.

This Supreme Court appears to be chipping away at the behemoth Administrative State and the EPA’s regulations on greenhouse gas regulations may be next on the chopping block. That’s the view of Jonathan Adler at Volokh Conspiracy and I think he has a valid claim.

Not so fast, OSHA.

Adler’s thesis begins with the Occupational Health and Safety Administration’s emergency regulation which mandated that all private employers with one hundred employees  require its employees to be vaccinated against Covid or undergo repeated weekly testing for the virus. The Court ruled that this exceeded the agency’s grant by Congress to protect the health of workers in their place of employment  The Court made clear that without a clear congressional mandate the agency was never given congressional authority to make such  “ a significant encroachment into the lives—and health—of a vast number of employees.”

 There is a hint in Chief Justice Roberts and several other members of the court that they believed that the regulation was a pretextual effort to increase Covid vaccinations, and not a workplace safety move. And the scope of OSHA’s mandate is, after all, simply and exclusively workplace safety. The notion that regulations might be held invalid because they were pretextual even if the agency could provide a reasonable justification for them, was signaled  in an earlier case involving the right of the Trump administration to reinstate a citizenship question in the census:

 [T]he Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence -- whether or not in the official record -- to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion... that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.

This is a departure from the usual view on judicial review . Normally, if the regulators can provide a reasonable justification and the regulation aligns with the statutory mandate, courts will not interfere. It also justifies court consideration of matters outside the text of the regulations itself. In sum, it presaged the OSHA case where the White House chief of staff Ron Klain retweeted that this regulation was a “work around” to increase the number of people vaccinated when there was no authority for an executive order compelling it.

Other evidence of the pretextual nature of the  vaccine mandate regulations is found in its own language--the deciding factor for coverage was the number of employees and not the workplace conditions. So, for example if all those one hundred employees were working from home they were covered by the mandate, but if a ninety nine- employee shop involved people working close together in poorly ventilated settings they were not. Seems fairly obviously irrational, doesn’t it?

Block that pretext!

The left may have cheered the census case outcome -- the Supreme Court remanded the issue back to the lower courts and in so doing delayed inclusion of the question in the census-- but it may come back to bite them as coming up on the docket is a case involving the EPA and its authority to regulate greenhouse gases.

This case comes up on several writs of certiorari to the court, challenging a decision by the U.S. Court of Appeals for the District of Columbia which held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act  to regulate greenhouse gas emissions from power plants. Then President Trump rescinded the Obama Administrations Clean Power Plan (CPP) and adopted an Affordable Clean Energy (ACE) in its place. The D.C. court concluded that the Trump Administration's recision was arbitrary and capricious, though it did not compel a reinstatement of the CPP, and the EPA still has not come up with new regulations. In the face of the Supreme Court trend to clip administrative agency wings the EPA is in limbo presently. It has no idea how far the new regulations may sweep.

The three cases upon which the Court granted certiorari broadly question EPA’s authority -- does the Clean Air Act have any limits? What are these administrative boundaries? For example, can the agency ignore cost of compliance, the power of states to set performance standards, reshape the nation’s electricity grid? These, among others, are the questions raised by the three petitioners.

However the Court decides, it is likely to be the most important environmental (and energy) decision cases in the court’s history. And it seems to follow on a partisan attack on the revival of an apparently unrelated citizenship question in the census. On such things does the course of history turn.

The Great Ethanol Boondoggle

During the Jimmy Carter administration when gas shortages and long lines at the pumps were high on voters long list of dissatisfactions, a bright idea took hold: mandate ethanol, the creation of gasoline from crops, most especially food stock like corn –about 40 percent of which is  now used to produce it.  It was convenient for politicians on the left. It was renewable. It was domestic and, not least of all, it was a political plus for those who supported it because Iowa was the first primary election in the country and it is corn country.

For decades afterward, even when there was no shortage of available fuel from conventional sources, Congress adored ethanol. Of course, there have always been problems created by the ethanol mandate. It raises the price of food—corn and meat in particular. It can damage car engines and fuel pumps. Two years ago, the Atlantic decried the lost promise of ethanol, once the darling of the Democrats:

 In the United States, the cultivation of corn for ethanol now requires a staggering 38 million acres of land—an area larger than the state of Illinois. By comparison, the total area of cropland used to produce grains and vegetables that humans eat is only about twice that acreage. In other words, the U.S. devotes enough land to corn-ethanol production to feed 150 million people.

The 2007 Energy Independence and Security Act requires ever-increasing amounts of ethanol in gasoline sold in the United States. Small refineries are theoretically allowed to seek EPA exemptions from the mandates when the high compliance costs threaten their operations. Sixty-five small refineries have sought exemptions -- but the EPA has denied every one of them. If they shut down because operations are no longer profitable, East Coast fuel supplies in particular will be hard hit and prices more volatile.

It appears that while hawking renewables at the same time it substantially reduces conventional fossil fuel production, the Biden Administration has decided to increase the blend of ethanol required in gasoline and, in the process, raising gasoline prices even higher. A week ago, the EPA scaled back the corn-ethanol mandate for 2020 due to the widespread lockdowns and now proposes to raise the mandates for cellulosic ethanol, biodiesel, and advanced biofuels. Renewable diesel costs between fifty cents and one dollar more than petroleum diesel, an increase passed on to consumers.

Who benefits from the shift? It's not vehicle owners, because as fuel economy has improved, the quotas have become "increasingly unattainable" and the damage to older cars greater. Refiners are forced to buy credits from EPA to comply with the quotas or turn to more expensive biofuels, which are often imported.

Who's to blame? Not Iowa corn  farmers. It’s the oil giants and hedge funds. And the Iowa corn farmers who banked on their state’s early presidential caucuses to keep them in the ethanol drivers’ seat? Well, the writing  on the wall appeared in 2016 when Ted Cruz, who opposed the ethanol subsidies and mandates, won the Republican primary there.  And their doom was sealed when in 2020 Donald Trump won the presidential race in their home state.

Maybe the only way to kill this program is for oil-producing states to run their primaries before any state that produces the now-favored mandated substitutes for corn-based ethanol.

The Real Energy Crisis

Instead of handing out treats for Halloween on October 31, the Biden Administration and the green industrial complex supporting it are lining up the tricks to commit America to a green future that looks bleak, and promises more hardship here, particularly for seniors and the poor, just as in Europe.

Even the climate-cheerleading The Economist nods to reality.

The switch from coal to renewable energy has left Europe, and especially Britain, vulnerable to a natural-gas supply panic that at one point this week had sent spot prices up by over 60 percent. …[M]ake no mistake, the deeper forces behind the shortage economy are not going away and politicians could easily end up with dangerously wrong-headed policies. … [G]overnments… may have to meet shortages by relaxing emissions targets and lurching back to dirtier sources of energy. Governments will therefore have to plan carefully to cope with the higher energy costs and slower growth that will result from eliminating emissions. Pretending that decarbonisation will result in a miraculous economic boom is bound to lead to disappointment.

As a direct result of bad policy choices, this is the real “climate crisis.” We can only hope the Economist is correct about the possible political “backlash.” The question is whether that comes too late.

To the rescue?

With dire warning signs out of Europe over a feared cold winter amid record-low fossil fuel supplies due to green mandates, and a green energy infrastructure unable to meet demand, green-industrial complex voices are already pre-butting assignment of responsibility saying, whatever you do, blame “anything but the greens.”

Of course, if you’ve ever had, or even been, teenagers, you know that a chorus of voices piping up in early October that “December’s not my fault” is a good sign that December is their fault. During California’s 2020 rolling blackouts, Governor Gavin Newsome “pointed to California’s shift to renewable resources as part of the reason for the supply shortage. ‘Shutting down polluting gas power plants as created gaps in the state’s energy supply,’ he said.”  And while he is apparently still committed to a “green” future, Newsome said, “we cannot sacrifice reliability.” Too late.

Anyone truly surprised by the perils created by politicians has not been paying attention. Enron executives predicted this in 1999, as they organized and funded what has become the climate industry. One internal email noted, “more than any other U.S. corporation [Enron] has helped legitimize the case of apocalyptic climate change and today is carrying the Kyoto flag more than any other U.S. corporation.….” Another, however, acknowledged that this politicization of energy markets posed great systemic risks such as what we are seeing unfold today:

Maybe Enron can dodge the macro problem and have our micro benefits, but then again I have to think that a politicized international energy market for any reason will create as much or more downside than upside.

Although Enron is long gone, the harms visited on the U.S. and global economies by its agenda continue. And with climate activists embedded throughout the government in key energy and climate roles, there is even less regard at present for the need for public support or political legitimacy.

The Washington Post reports,

Environmental Protection Agency Administrator Michael Regan says he’s willing to wield broad regulatory power to enact President Biden’s climate agenda if Congress fails to pass meaningful climate legislation. Regan says his agency will issue a robust greenhouse gas rule for power plants, a stringent methane rule for oil and gas infrastructure, and sweeping emissions standards for new cars, regardless of Congress's actions.

Similarly, White House aide Gina McCarthy repeated the line from the Obama-Biden EPA when it comes to imposing the climate agenda: “The Biden administration will use its ‘regulatory authority’ to act on climate change if it can’t get Congress to” pass its desired legislative agenda.

Don't cross the Queens...

Massachusetts Attorney General Maura Healey even promised a Michael Bloomberg group that, if it gave her privately funded attorneys to be embedded in her office, she would use them to enforce “the long-term commitments set forth… in the Paris Agreement.” Those were supposedly voluntary, we were told, in order to keep the U.S. Senate from voting on the pact.

Those promises are about to be made more painful. On October 29, keep an eye on the D.C. Circuit Court of Appeals, where the Biden Environmental Protection Agency is expected to roll over in a sue-and-settle lawsuit, State of New York et al. v. EPA. In a filing due that day, EPA is likely to announce plans to issue new ozone National Air Ambient Quality Standards (NAAQS), seemingly obscure but in fact “Biden’s back door climate plan,” as the main vehicle to impose this “climate” agenda.

History suggests this also will re-run an Obama Year 1 move to obtain praise at and energize the Rome G20 meeting the next day, and climate pact talks in Glasgow beginning two days later. At both, Biden is expected to deepen President Obama’s GHG emission-reduction promises based on the Clean Power Plan, tossed out by the Supreme Court in West Virginia v. EPA.

None of these moves has popular support or political legitimacy. It will take until the end of Biden’s term to conclude their legality. History also shows that is enough time to destroy communities as industry redirects investment decisions. Already we see, with the unfolding energy crisis, how these plans increase costs, and reduce energy security and reliability. That’s the real “climate crisis.”

Every Wildflower is Sacred, Even 'Buckwheat'

It’s my view that the Environmental Protection Act goes too far and allows every vital major energy-producing and -extraction project to be bollixed up by those who hate humanity. Those who wish to save every rare weed, snail darter and smelt attribute sacredness and need to "preserve" everything except humans.

Lithium is critical to electric car batteries because despite its light weight it can store lots of energy and can be recharged. In Nevada, which is rich in underground lithium resources -- resources urgently needed for the growth of mandated electric vehicles and renewables -- we see what Forbes calls the “environmentalist/anti-development movement” moving to halt lithium production in the U.S., an extractive process , not very different from those used in coal mining , oil drilling and fracking.

Lithium: better than "buckwheat."

At this time, lithium is mined mostly in Australia, Chile, China and Argentina. If we mine more here we could reduce the cost of electric vehicles. If we don’t, we’ll be importing it, mostly from China. President Biden proposes offering a rebate for consumers who trade in gas-powered vehicles for electric cars, without, as I’ve noted, doing one thing to increase electric power generation.

Now the Administration has gone even further in initiating action which could halt construction of a lithium mine in Nevada. This mine would create 700-900  jobs, and is expected to produce enough lithium to power “hundreds of thousands of electric vehicles annually.” Under the Endangered Species Act, the U.S. Fish and Wildlife Service has just determined that it will list a 6-inch tall wildflower -- Tiehm’s buckwheat -- as a threatened or endangered species, determining that a company’s proposal to salvage the remaining plants by transplanting them elsewhere was an uncertain move, because “current research indicates that Tiehm’s buckwheat is a soil specialist, that adjacent unoccupied sites are not suitable for all early life-history stages, and there has been no testing or multiyear  monitoring on the feasibility of successfully transplanting the species.”  

 The government has until September 30 to issue a formal rule on protecting this wildflower after which there will be a 60-day public comment period. There is only one other large-scale lithium mine in the U.S., also in Nevada,  and it  has been operable for about six decades. Another one being planned in Nevada at the largest known lithium deposit in the U.S. also is facing legal challenges.

The  challenge in this case is by a non-profit outfit called the Center for Biological Diversity, which first came to public attention when it fought to limit logging in old growth timberland to preserve the Mexican spotted owl. If memory serves, it was established subsequently that the spotted owl  was better protected by removing its competitors, barred owls, from areas where the spotted owl was in decline.

Since one of the greatest dangers to this wildflower is the rodents that eat it, maybe they should eradicate the mice to save it.