“Achieving Conservative Objectives:” Behold The Paradigm, Roberts Court Cloaks Its Activism In Complexity
To understand the U.S. Supreme Court’s order on greenhouse-gas regulations, I had to read it three times — and I’m a law professor. The complication isn’t a coincidence. It’s the very essence of the imprint that Chief Justice John Roberts is putting on the court.
As its ninth term clicks into gear, the Roberts court has finally developed something like an identity of its own. It avoids highly activist conservative headlines that would drive Democrats to the polls. At the same time, behind a screen of legal complexity, it achieves significant conservative objectives.
The court’s health care decision is an obvious recent example: Roberts cast the deciding vote to uphold mandatory coverage, enraging conservatives and encouraging liberals. But by striking down the provision that pressured states to extend Medicaid, the court gutted the universal coverage that was the Affordable Care Act’s ethical ideal.
The regulation of greenhouse-gas emissions bids fair to produce a similarly confusing result. The court had been asked to review a decision of the U.S. Court of Appeals for the D.C. Circuit that upheld Environmental Protection Agency regulations on greenhouse gases that are the Barack Obama administration’s most significant accomplishments for environmental protection. The court declined to review — and thus left in place — the regulations on motor-vehicle emissions. It also chose not to review the basic question of the EPA’s authority to regulate greenhouse gases. Environmentalists cheered this result.
At the same time, however, the court agreed to review a single, wildly technical-sounding question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” What this question asks in English, roughly speaking, is whether the EPA was allowed to issue emissions regulations governing factories and power plants under the authority of the law that lets it regulate cars and trucks. And what that means in practical terms is that the court could strike down the Obama EPA’s existing greenhouse-gas regulations for the nonmoving (“stationary”) polluters who create much of the pollution that drives global warming.
Behold the Roberts paradigm! Or don’t behold it: The hand is quicker than the eye. The headline allows environmental regulation to stand. The fine print suggests that the most important part of the existing regulations enacted by the Obama administration could be ditched.
And, remarkably enough, environmentalists are buying into the shell game as well. Some experts hastened to explain that, even if the Roberts court were to strike down the stationary-source regulations on the grounds that they were not authorized by laws permitting regulation of motor vehicles, there would still be other ways under the Clean Air Act to enact such rules. The court’s decision to hear the case, they implied, shouldn’t worry environmentalists too much.
The experts’ observation is technically correct but could prove too optimistic. The administration plans to enact different regulations covering coal-fired power plants, under different authority. But if the court were to strike down the existing stationary-source regulations in June 2014, significant uncertainty will result. The court’s reasoning, which cannot be foreseen, could potentially call into question other types of regulation. The litigation surrounding the planned regulations — and believe me, there’ll be litigation — will have to take into account the court’s reasoning, whatever it may be. The apparently narrow question to be addressed doesn’t guarantee a holding acoustically sealed off from regulations under different authority.
Coincidentally, the energy producers and manufacturers who make up the stationary-source polluters form a concentrated interest group. They will lobby to fight the new regulations, no doubt using the argument that greenhouse gases have already been significantly cut by regulating drivers. And, of course, drivers’ interests are more diffuse, so (surprise!) their lobbying power is weaker. They are, in short, perfect patsies to take the regulatory hit.
All this adds up to an extremely sophisticated strategy for the justices who agreed to take the case. Even if they strike down the regulations, they will be doing so on the highly technical basis that the EPA relied on the wrong source of authority. Environmentalists will focus the public’s attention on enacting new regulation, thereby distracting the public from blaming the court. The whole decision will look Solomonic — upholding a part of the regulations while striking down another part — rather than like pro-business activism. The court’s legitimacy will be preserved, even strengthened.
What makes this strategy hallmark John Roberts is how markedly it differs from the approaches of the court’s other conservatives. Justice Antonin Scalia, still the intellectual leader of the conservative wing into his increasingly cantankerous mid-70s, declares his broad principles of originalism and textualism and puts them into practice, most of the time consistently. His swashbuckling decisions and clever, incisive rhetoric leave you in no doubt where he stands. You can love him or hate him (I myself feel both emotions, usually simultaneously), but you always, always know where he stands. Justice Clarence Thomas is similarly out there, lauding the virtues of the 18th century. No one could call either of these justices crafty.
In their decades on the court — each having served with Chief Justice William Rehnquist — Scalia and Thomas never managed to achieve the conservative revolution that the Ronald Reagan era promised and the Federalist Society championed. Radical — and radically consistent — they couldn’t hold the center, frequently losing the votes of Justices Sandra Day O’Connor and Anthony Kennedy when the chips were down. Rehnquist, equally conservative but less openly ideological, couldn’t help. As men of principle, which judges are supposed to be, Scalia and Thomas might feel a perverse pride in never winning the big ones. As men of action, they have mostly failed.
Roberts is a horse of a different color. As a former law clerk to then-Justice Rehnquist, he decided to win, even at the cost of temporarily alienating his conservative elders. His legal craft is unmatched — because if you’re the Supreme Court, it’s much better to win while appearing to lose than to lose by insisting on looking as if you’ve won.
By: Noah Feldman, Bloomberg View, Published in The National Memo, October 17, 2013
A basic economic principle is government ought to tax what we want to discourage, and not tax what we want to encourage.
For example, if we want less carbon dioxide in the atmosphere, we should tax carbon polluters. On the other hand, if we want more students from lower-income families to be able to afford college, we shouldn’t put a tax on student loans.
Sounds pretty simple, doesn’t it? Unfortunately, congressional Republicans are intent on doing exactly the opposite.
Earlier this year the Republican-led House passed a bill pegging student-loan interest rates to the yield on the 10-year Treasury note, plus 2.5 percentage points. “I have very little tolerance for people who tell me that they graduate with $200,000 of debt or even $80,000 of debt because there’s no reason for that,” Rep. Virginia Foxx (R-NC), the co-sponsor of the GOP bill, said.
Republicans estimate this will bring in around $3.7 billion of extra revenue, which will help pay down the federal debt.
In other words, it’s a tax — and one that hits lower-income students and their families. Which is why several leading Democrats, including Senate Majority Whip Dick Durbin, oppose it. “Let’s make sure we don’t charge so much in interest that the students are actually paying a tax to reduce the deficit,” he argues.
(Republicans claim the President’s plan is almost the same as their own. Not true. Obama’s plan would lead to lower rates, limit repayments to 10 percent of a borrower’s discretionary income, and fix the rate for the life of the loan.)
Meanwhile, a growing number of Republicans have signed a pledge – sponsored by the multi-billionaire Koch brothers — to oppose any climate-change legislation that might raise government revenues by taxing polluters.
Officially known as the “No Climate Tax Pledge,” its signers promise to “oppose any legislation relating to climate change that includes a net increase in government revenue.”
By now 411 current office holders nationwide have signed on, including the entire GOP House leadership, a third of the members of the House as a whole, and a quarter of U.S. senators.
The New Yorker’s Jane Mayer reports that two successive efforts to control greenhouse-gas emissions by implementing cap-and-trade energy bills have died in the Senate, the latter specifically targeted by A.F.P.’s pledge
Why are Republicans willing to impose a tax on students and not on polluters? Don’t look for high principle.
Big private banks stand to make a bundle on student loans if rates on government loans are raised. They have thrown their money at both parties but been particularly generous to the GOP. A 2012 report by the nonpartisan Public Campaign shows that since 2000, the student loan industry has spent more than $50 million on lobbying.
Meanwhile, the Koch brothers – whose companies are among America’s 20 worst air-polluters –have long been intent on blocking a carbon tax or a cap-and-trade system. And they, too, have been donating generously to Republicans to do their bidding.
We should be taxing polluters and not taxing students. The GOP has it backwards because its patrons want it that way.
By: Robert Reich, Robert Reich Blog, July 6, 2013
Environmentalists and Nebraska farmers are upping the pressure on President Obama to reject the controversial Keystone XL pipeline following an oil spill that took place over the weekend.
The rupture occurred in central Arkansas, about 20 miles north of Little Rock, as Exxon’s Pegasus pipeline spilled thousands of barrels of Canadian tar sands oil — the same Alberta crude the Keystone pipeline would carry. The Environmental Protection Agency (EPA) is calling it a “major spill” as officials from the EPA and Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) are currently conducting an onsite investigation while ExxonMobil continues its cleanup efforts.
The company said more than 12,000 barrels of oil and water, or 185,000 gallons, had been recovered by Sunday. Reports say the line gushed for 45 minutes before being stopped and 22 homes were evacuated.
The Arkansas accident was the second Canadian crude oil spill in less than a week, as last Wednesday a train derailed and leaked 30,000 gallons of crude in western Minnesota.
The 20-inch Pegasus pipeline runs from Illinois to Texas and carries 90,000 barrels of crude per day. TransCanada’s 36-inch Keystone XL Pipeline would stretch 1,179 miles from Alberta, Canada to Nebraska, where it would connect with the pipeline system that would carry the tar sands oil to refineries in Texas along the U.S. Gulf Coast.
A Media Matters report states that “Keystone is all risk and no reward for America. The fact that Canadians don’t want Keystone built across their own country tells us everything we need to know about the risks.” The report cautions about TransCanada’s poor safety record, citing 12 oil spills in the first year of operation of another section of the Keystone pipeline. However, TransCanada promises that new technology from its Calgary control room can better monitor pipeline pressure and shut off a leak within 15 minutes. But environmentalists say the tar sands pipeline is more vulnerable to leaks because “the diluted bitumen, or dilbit, from the oil sands can separate under pressure or high temperature and create explosive natural gas, heavy compounds, and corrosive acids.”
In an interview about the Arkansas spill, Keystone XL opponent and founder of climate action group 350.org, Bill McKibben, said “the power of the fossil fuel industry in Washington is enormous. They have all the money. The only thing we can stack up on the other side is the power of movements. We’ve been building them as fast as we can. We’ve had the largest civil disobedience action in 30 years about anything, about this pipeline. We had 40,000 people on the Mall last month in D.C. in the largest climate rally ever. I don’t know if it’s going to be enough, but we’re fighting it as hard as we can.”
The president is expected to make a decision on the Keystone XL pipeline by this summer.
By: Josh Marks, The National Memo, April 1, 2013
As far-right groups go, the Heartland Institute hasn’t quite reached household-name status yet, but it’s working on it. The group’s strange new billboards, at a minimum, will probably help push the group’s notoriety.
The Heartland Institute is “a tax-exempt organization which promotes conspiracy theories about climate scientists, distorts climate science, and attacks regulation of air and water pollution.” Despite support from corporate allies, the group has become so extreme that high-profile supporters, including GM and AT&T, no longer want anything to do with the outfit.
Instead of moderating its views and aiming for the mainstream, the Heartland Institute is buying billboards along highways in Chicago. Joe Romm reported today:
The Heartland Institute has launched one of the most offensive billboard campaigns in U.S. history. The Chicago-based anti-science think tank is comparing all those who accept climate science — and the journalists who report on it accurately — to Charles Manson, the Unabomber, and Osama Bin Laden.
The Guardian described this as “possibly one of the most ill-judged poster campaigns in the history of ill-judged poster campaigns.”
Of course, the Heartland Institute doesn’t quite see it that way. In its defense of the group’s propaganda, the Heartland Institute says it’s eager to convince people that “believing in global warming” is not “sophisticated,” and to do so, it’s noting that “murderers and madmen” agree with those who accept climate science.
Perhaps the group can use some of its remaining funds to buy a textbook on Logical Fallacies 101?
Andrew Sullivan added, “In some ways, this is an almost perfect illustration of what has happened to the ‘right.’ A refusal to acknowledge scientific reality; and a brutalist style of public propaganda that focuses entirely on guilt by the most extreme association.”
By” Steve Benen, The Maddow Blog, May 4, 2012
Republicans have sought to frame the Keystone XL pipeline as a job-creating project being thwarted by “radical environmentalists.” Is it? A new Cornell University study claims that the pipeline could actually have a negative impact on the economies of the states it would pass through.
“In the national debate, job creation has been set alongside environmental concerns in a rigid either-or fashion,” says Sean Sweeney, one of the study’s authors, “But oil spills also kill jobs, they consume resources, they have an impact on health, and can also lead to a lower quality of life.”
The range of estimates of jobs vary widely. TransCanada claims the pipeline will create 20,000 jobs. A State Department report estimates that only 20 permanent operating jobs would be created in the six states along the pipeline route. By comparison, those same states are home to robust agricultural, ranching and tourist industries that are dependent on water and vulnerable to environmental contamination. Across the six states agriculture employs 571,000 workers and tourism 780,000; the total revenue from those sectors, respectively, is $76.3 billion and $67 billion.
Sludge not crude
Tar sands oil — known in energy circles as diluted bitumen — may be more damaging to environments and communities than regular crude. Said Sweeney, “Diluted bitumen is an irregular substance — it runs thick and thin, hot and cold. It’s basically a sludge, not like regular crude — it behaves differently.” Tar sands also seem more likely to spill than conventional crude: The spill rate for diluted bitumen in the northern Midwest between 2007-2010 was three times the national average for conventional oil. This may be because the heavy, corrosive material puts greater stress on pipelines.
The already existing Keystone I pipeline, which runs 2,100 miles from Alberta to Illinois, began operating in 2010; in the two years since, 35 spills have occurred. In the pipeline’s first year of operation alone, its spill rate was 100 times TransCanada’s projection. All told the amount of tar sands oil being transported through the United States has more than tripled in the past decade to 600,000 barrels in 2010. Keystone XL, if built, would add another 830,000 barrels per day.
John Stansbury, a professor of civil engineering at the University of Nebraska, analyzed spill data from the Keystone I pipeline to estimate that 91 spills would occur over the course of 50 years of Keystone XL’s operation — close to two spills each year. In a worst-case scenario, he says, a spill could contaminate 4.9 billion gallons of groundwater in Nebraska’s Sand Hills with benzene, a known carcinogen.
The threat the pipeline poses to Nebraska’s Ogallala Aquifer, which provides 30 percent of the irrigation water in the U.S., has been much-discussed, but the pipeline would also cross another 1,747 bodies of water, including the Yellowstone and Missouri Rivers and the Carrizo-Wilcox aquifer, the third largest aquifer in Texas.
If Keystone were to leak — or worse, rupture — the consequences could be serious. In July 2010, a pipeline operated by the company Enbridge ruptured — the company has never explained why — spilling 1 million gallons of tar sands oil into Michigan’s Kalamazoo River. The oil drifted 40 miles upstream, causing 145 reported instances of illness and health problems for people living in the riverside community of Marshall, Mich. Marshall residents living within 200 feet of the river were eligible for a buyout program; about 130 people sold their houses to Enbridge, leaving some areas uninhabited.
The Kalamazoo cleanup has cost $725 million so far — twice as much as Enbridge estimated — and the river remains closed to fishing, hunting and other recreational activities over a year and a half after the spill occurred. Officials in the Calhoun County Health Department have said some bitumen will likely remain in the river “indefinitely.” Sweeney points out that the rural areas along pipeline routes are unprepared to cope with spills. “They had to bring someone in from the Gulf to deal with Kalamazoo,” he explained.
While the Kalamazoo spill was the biggest-ever tar sands spill, pipeline spills occur with startling frequency. In 2011 alone, there were 600 reported pipeline incidents. TransCanada’s website argues that “if they do occur, pipeline leaks are small,” yet pipeline spills caused 17 deaths and 68 injuries, and over $335 million in property damage. In 2010, when the Kalamazoo spill occurred, the damages from pipeline spills topped $1 billion. While pipeline spills don’t get the attention of disasters like the Exxon-Valdez and BP, they point to a familiar pattern of underestimating risk and underpreparing for disaster.
TransCanada insists that it will comply with all federal regulations, and construct and operate Keystone XL “to the highest industry standards.” Danielle Droitsch, an attorney with the National Resources Defense Council, argues that we don’t know enough about diluted bitumen to be able to transport it safely. “We’re building these pipelines as if they were conventional oil pipelines,” she said. “We don’t have any special regulations in place to deal with the fact that these are tar sands pipelines and they are very different. Until we have a new regulatory system in place there are no safety measures proposed that would make this pipeline safer.”
And in the meantime? “There’s no question this pipeline will spill — it’s a question of when.”
By: Allyssa Battistoni, Salon, March 19, 2012