“The EPA Messed Up The Animas River”: But The Real Threats Are Still Private Industry And The GOP
The American Southwest suffered a serious environmental crisis last week, after an Environmental Protection Agency effort to clean up old mining waste went disastrously awry, breaching a containment dam and releasing millions of gallons of contaminated water into the Animas River. The city of Durango and San Juan County in Colorado, as well as the Navajo Nation (the largest Native American reservation in the U.S.), have declared a state of emergency, instructing their citizens to stay out of the water and avoid using it for agriculture or drinking for the time being.
It’s a giant screw-up by the EPA, which is scrambling to fix the problem. Yet it’s one that could not have happened without a monstrous failure of private industry, which means it bears directly on the 2016 presidential race, in which environmental issues will play an important role. The Animas River debacle shows that Republican dogma — which says that pollution is basically no problem and that the EPA should be sharply restricted, if not abolished altogether — is tantamount to a pro-poisoning position.
Mining has long been a fixture of the Mountain West, but it has slowed considerably from the go-go days of the 19th and early 20th centuries. Much of that was hardrock mining of gold and silver, which require very dangerous chemicals and the processing of thousands of tons of ore. Colorado is thus littered with thousands of abandoned mines, and the Animas watershed was no exception, with 400 old mines.
This is a problem, because the mountain mines inevitably fill with water that has leached through the rock, carrying heavy metals and other toxins with it. Cleaning this up is very expensive, and mine companies would obviously prefer not to do it. Early mine investors were notorious for setting up a shell mining company, extracting the material while paying their executive class a fantastic salary, setting up a token cleanup operation (or forgoing it altogether), then declaring bankruptcy and starting all over again.
That’s the profitable, job-creating businessman’s solution to mining waste: just poison the neighborhood, then skedaddle. Hey presto, someone else’s problem!
However, as regulations became more stringent (especially thanks to the Clean Air and Clean Water Acts), things changed. In general, companies (like Anaconda Copper) now work with the EPA and local communities to clean up old sites, often at great expense.
It was one of those old pools of mining waste — around Silverton, Colorado — that the EPA was testing when it accidentally breached a containment dam and released the water. It’s been a big problem for years; the EPA and the mine company have pushed for Superfund designation (which would have made more money available for cleanup), while locals have resisted, fearing for their property values.
Again, clearly the EPA is at fault here. But it’s also worth noting that this spill is relatively minor compared to previous similar incidents, and that the dam would have likely burst on its own eventually. The question is what to do about it. Left to its own devices, it’s quite obvious what private industry would do: nothing. When it comes to environmental externalities, there is simply no alternative to some kind of government policy. And since the waste is already in place, there is no way to set up a Pigovian tax scheme that would deter such waste in the first place. It’s the EPA or bust.
Nevertheless, bust is basically the Republican position. At every turn during the Obama years, they have advocated for fewer environmental controls, greater freedom for corporations to pollute the environment, a cut in EPA funding, and attacks on the science that makes the regulations possible. During the 2012 campaign, the EPA’s “job killing regulations” became something of a Republican catechism. These days, Sen. Joni Ernst (R-Iowa) wants to abolish the agency altogether, while Sen. James Inhofe (R-Okla.), the chair of the Senate’s environment committee, has merely compared it to the Gestapo.
Ironically, new rules stemming from the Clean Water Act have been the subject of particular conservative ire of late. A minor update in a rule interpreting the Clean Water Act sparked furious Republican outrage, as well as a proposal to abolish the rule that would make it dramatically harder to regulate American rivers and streams.
On pollution, the magic of the free market is supposed to be what takes the place of sclerotic EPA bureaucracy. You only have to look back to the Gilded Age to see what a farcical idea that is. The Republican utopia is one where cities suffocate under a cloud of choking smog; where the hearts of American children pump lead-clouded blood; and where drinking water will be sacrificed to pad corporate profits.
By: Ryan Cooper, The Week, August 12, 2015
“Working For The Same Boss”: The Coal Industry Is Imploding. Why Is it Still So Powerful in Washington?
As its battle against the Obama administration’s Clean Power Plan intensifies, Big Coal is getting a lot of help from friends in high places.
Leading the rush to the industry’s defense is Senate majority leader Mitch McConnell, who has launched an underhanded campaign to undermine the Environmental Protection Agency’s new rules for greenhouse gases from power plants. In a March 3 op-ed, McConnell suggested that states should refuse to submit a state plan for lowering emissions. A few weeks later he sent a letter directly to every governor in the country, warning that developing such a plan would allow “the EPA to wrest control of a state’s energy policy.”
To further encourage states to opt out of the rules, McConnell and co-sponsors Rob Portman, Roy Blunt, Tom Cotton and Orrin Hatch put forth an amendment to a budget resolution on Wednesday that would allow a state’s governor or legislature to duck the EPA’s authority if they determined that adopting a plan to reduce emissions would hurt their state. (A similar measure is pending in the House.) In order to opt out, according to David Doniger of the National Resources Defense Council, all a state would need to do is “to declare that meeting carbon standards would cost the polluters money.”
McConnell’s bases his appeal to the states on the claim that the regulations are “probably” illegal. In this argument he is is backed by “iconic liberal constitutional scholar Laurence Tribe,” who, McConnell practically crows, “was President Obama’s constitutional law professor at Harvard Law School.” In recent months Tribe has been busy writing legal briefs and op-eds and trotting himself out before the House Energy and Commerce Committee to make that case that the EPA’s attempt to regulate greenhouse gases under the Clean Air Act is an egregious act of overreach akin to “burning the Constitution.” Tribe goes well beyond questions of legality, however, as Jonathan Chait points out, defending coal as a time-honored home-dug alternative to foreign oil.
Tribe’s starring role in McConnell’s circus is unexpected, but it’s not hard to explain: They’re working for the same boss. Tribe was hired to assail the Clean Energy Plan by Peabody Energy, the nation’s largest coal producer—and also the fourth-largest contributor to McConnell over the course of his career, according to The New York Times.
There isn’t enough support in the Senate to override the inevitable veto of any legislation that undermines the power plant rules. That’s why McConnell is appealing directly to the states. A dozen have already sued to stop the regulations, and it’s these legal challenges that have the most potential to cripple, or at least slow down, the plan’s implementation. The coal industry and nineteen states are also using lawsuits to try to wriggle out of new limits on mercury, arsenic and other toxic emissions; the Supreme Court heard arguments against that rule on Wednesday.
All of this suggests that Big Coal’s star is as bright as ever in Washington. The persistence of its political influence looks increasingly odd, however, when held against the fact that coal industry is imploding. The global market research firm Macquarie Research warned investors on Monday that the future for US coal companies is “increasingly bleak,” and the sector is likely to see “a wave of bankruptcies.” A report released Tuesday by the London-based Carbon Tracker Initiative found that more than two dozen coal companies have recently gone bankrupt. Between 2005 and 2010 coal lost more than 10 percent of its market share in US power generation. Meanwhile, China continues its efforts to kick its own coal habit: This week officials announced that they will shut the last coal-fired power plant in Beijing in 2016. “This is an industry in crisis,” writes Ross McCracken of Platts Energy Economist. “Now it faces a slow King Canute style defeat.”
Why are coal companies having such a hard time? One reason is that it’s becoming too expensiveto mine coal for profit in some areas, now that the easy-to-reach reserves in Appalachia (if you consider blowing the top off a mountain easy) are tapped out. The costs of shipping coal are going up, while renewable energy is increasingly affordable. The Carbon Tracker report does point to EPA regulations, particularly on Mercury, as one of the significant challenges to the industry. But even more important is the 80 percent drop since 2008 in the price of natural gas. Coal just can’t compete anymore. “What is also striking is that these factors were not driven explicitly by carbon or climate considerations,” the report continues. “Without a global climate deal or a federal carbon price, US coal is already down for the count.”
Meanwhile the economy is growing (if horrifically unequally), indicating that coal isn’t nearly as relevant as the debate about the power plant rules would suggest. Giants like Peabody still have enough money to net powerful lackeys like Tribe. But at most McConnell’s campaign would amount to corporate life support, perhaps enough to keep Peabody alive. It’s certainly no plan to lift up the struggling coal regions he claims to be fighting for. McConnell isn’t fighting the “war on coal” just for Peabody’s sake, however. As a narrative through which to filter broader resistance to any challenge to corporate power made in the public interest, that “war” is far too useful to give up.
By: Zoe Carpenter, The Nation, March 25, 2015
“From Dysfunction To Malfunction”: Mitch McConnell And The Limits Of Scorched-Earth Obstructionism
As the Senate Republicans’ leader, Mitch McConnell launched an experiment of sorts during the Obama era. It was a strategy without precedent in the American tradition, and it was arguably a historic gamble that wasn’t guaranteed to work. But the Kentucky Republican and his allies did it anyway.
And as the calendar turns from November to December, it’s worth appreciating that last month was arguably the most informative to date when it comes to the results of this experiment – it was a month that crystallized the ways in which the GOP gambit was an extraordinary success and the ways in which it failed in ways McConnell didn’t expect.
McConnell’s master strategy was elegant in its simplicity: after his party was soundly rejected by voters in 2006 and 2008, McConnell came to believe recovery was dependent on unprecedented obstructionism. Republicans, the GOP leader decided, would simply say no to everything – regardless of merit or consequence, even when Democrats agreed with them.
The point, as McConnell has acknowledged many times, was to deny President Obama and his allies the all-important cover of bipartisanship – when an idea enjoys support from both parties, it’s effectively the Good Housekeeping Seal of Approval for the American mainstream. But if Republicans embraced blanket opposition to literally every Democratic proposal, the public would assume Obama was failing to bring the parties together behind a sound, moderate agenda. The gridlock would be crushing, but McConnell assumed the media and much of the electorate would simply blame the White House, even if that didn’t make any factual sense.
It worked. The American legislative progress has turned from dysfunction to malfunction over the last four years, creating a Congress that fails to complete even routine tasks, and those responsible for creating the worst governing conditions since the Civil War were broadly rewarded by voters. Obama went being from the popular, post-partisan leader who would repair the nation’s ills – an FDR for the 21st century – to the president with a meager approval rating who hasn’t signed a major bill into law since 2010.
As the results came in on Election Night, Vox.com made a compelling case that described Mitch McConnell as “the greatest strategist in contemporary politics.”
It’s tough to disagree, right? Republicans intended to destroy the American legislative process, and they did. Republicans set out to exacerbate partisan tensions, and they did. Republicans hoped to make Obama less popular by making it vastly more difficult for him to get anything done, and they did. Republicans hoped to parlay public discontent into electoral victories, and they did. Republicans made a conscious decision to prevent the president from bringing the country together, and they successfully made the national chasm larger.
There’s just one thing McConnell & Co. forgot: a gamble like this can be a strategic success and a substantive failure at the same time.
Consider this report, which ran on Thanksgiving.
President Obama could leave office with the most aggressive, far-reaching environmental legacy of any occupant of the White House. Yet it is very possible that not a single major environmental law will have passed during his two terms in Washington.
Instead, Mr. Obama has turned to the vast reach of the Clean Air Act of 1970, which some legal experts call the most powerful environmental law in the world. Faced with a Congress that has shut down his attempts to push through an environmental agenda, Mr. Obama is using the authority of the act passed at the birth of the environmental movement to issue a series of landmark regulations on air pollution, from soot to smog, to mercury and planet-warming carbon dioxide.
It seems counterintuitive, but President Obama simply doesn’t need Congress to advance one of the most sweeping and ambitious environmental agendas in generations.
With this in mind, McConnell’s strategy worked exactly as intended, producing the precise results Republicans were counting on, but the plan failed to appreciate what an ambitious president can still do with the powers of the presidency.
It’s not just the environment, of course. McConnell’s plan was also intended to destroy immigration reform, which was effective right up until Obama identified a legal way around Congress, helping millions of families in the process. Jon Chait added:
The GOP has withheld cooperation from every major element of President Obama’s agenda, beginning with the stimulus, through health-care reform, financial regulation, the environment, long-term debt reduction, and so on. That stance has worked extremely well as a political strategy. […]
The formula only fails to work if the president happens to have an easy and legal way to act on the issue in question without Congress. Obama can’t do that on infrastructure, or the grand bargain, and he couldn’t do it on health care. But he could do it on immigration.
And the environment. And in addressing the Ebola threat. And in targeting ISIS.
The irony is, had McConnell pursued a different approach, he could have advanced more conservative policy goals. If Republicans had worked with Democrats on health care, the Affordable Care Act would have included provisions with the right. If McConnell were willing to deal on immigration, Obama would have endorsed a more conservative approach than the executive actions announced two weeks ago. If the GOP made an effort to work with the White House on energy, Obama’s environmental vision would almost certainly have more modest goals.
Republicans might have been better off – which is to say, they would have ended up with a more conservative outcome – if they’d actually compromised and taken governing seriously in some key areas.
But McConnell thought it’d be easier to win through scorched-earth obstructionism.
Again, as of next month, he’ll be the Senate Majority Leader, so maybe he doesn’t care about the substantive setbacks. But for all the GOP gains at the ballot box, it’s Obama, not Republicans, moving a policy agenda forward.
By: Steve Benen, The Maddow Blog, December 1, 2014
“What Matters Is Reducing Emissions”: How Conservatives Will React To Obama’s New Climate Regulations
President Obama is set to announce new rules for carbon emissions today, and what we’ll see is a familiar pattern. The administration decides to confront one of the most profound challenges we face. It bends over backward to accommodate the concerns of its opponents, shaping the policy to achieve the goal in ways that Republicans might find palatable. Then not only are its efforts to win support from the other side fruitless, the opposition is so vituperative that it veers into self-parody.
That’s what happened with the Affordable Care Act; not only was the law not “socialism” as Republicans charged, it was about as far from socialism as you could get and still achieve universal coverage. It involved getting as many people as possible into private insurance plans, where they could see private medical providers. But Republicans who had previously embraced similar market-based ideas decided that once Obama poisoned them with his support, they were now the height of statist oppression.
Something similar happened with cap and trade, a carbon-credit system, which before 2008 was considered a conservative alternative to heavy-handed government regulation, harnessing the power of the market to reduce pollution—one that had the support of many Republicans. But once Obama began advocating cap and trade, Republicans decided it was the most vile sort of government overreach. The new regulations the administration is about to announce allow for state cap and trade systems, but the administration is carefully avoiding using the term.
The essence of the administration’s plan, at least in the details that have been reported so far, is that it will set statewide targets for reduction of carbon emissions from existing power plants (which are the single largest source of such emissions), then let each state decide how it wants to meet those targets. A state could institute a cap and trade program, or it could do any number of other things. That’s supposed to be just the kind of federalism conservatives love.
We’re likely to hear a number of responses from conservatives to these new regulations. Some will say climate change is a hoax, and there’s no reason to worry about it. Others will say that though climate change is real, we shouldn’t actually do anything about it. Others will talk about how despite the state-by-state flexibility, these regulations will be “job-killing.” But the word you’re likely to hear more than any other is “lawless.”
Every time Barack Obama takes an executive action they don’t like, Republicans describe it as “lawless.” There are certainly times when Obama has tested the limits of presidential power, just like pretty much every president before him. But Republicans make this charge even if what he’s doing is squarely within the president’s rights. (I contend that they make this charge so often because at a fundamental level, they believe Obama’s entire presidency is illegitimate, but that’s a discussion for another day.)
It’s true that early in his presidency, Obama tried unsuccessfully to pass climate legislation (a cap and trade bill passed the House but died in the Senate), and is now doing through regulation what he couldn’t do through legislation. But there’s nothing lawless about that, so long as the regulations are within his authority. In this case, Obama is not only allowed to regulate carbon emissions, he’s required to do so by law. In a 2007 case called Massachusetts v. E.P.A., the Supreme Court ruled that the Clean Air Act mandated that the federal government take steps to regulate carbon emissions, and that’s what the EPA will be doing.
Even if the state flexibility fails to win over Republicans, it’s still a good idea. What matters is reducing emissions, and whichever way a state gets there is fine. The states will be able to learn from each other; if they accomplish the reductions in different ways, we’ll discover which paths were the easiest, most effective, and least expensive, and states can adapt over time with that knowledge. But the details won’t matter to the administration’s opponents; because Barack Obama is proposing these regulations, they must be job-killing socialism intended to destroy America.
By: Paul Waldman, Contributing Editor, The American Prospect, May 27, 2014
“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
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