“Supreme Court; If It’s Worth It For Corporations, Pollution May Be Okay”: EPA Can Only Regulate Pollution When It’s Cost-Effective
While LGBTs and healthcare reformers are still nursing their celebratory hangovers, the final Supreme Court case of the 2014-15 term just junked twenty years of environmental regulations.
The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .
Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate.
If you think about it, this is an impossible task practically and philosophically.
Practically speaking, the regulatory process for mercury has lasted twenty years—in large part because the EPA weighed dozens of options, evaluating the costs and benefits of each. Today’s decision requires the EPA to balance costs and benefits at the very beginning of the process, before either the costs or the benefits are known.
EPA’s position was that, while costs must, of course, be taken into account in deciding how to regulate toxic chemicals like mercury, the initial decision of whether to regulate them should not be dictated by how much it costs to do so. What matters at that point—whether regulation is “appropriate and necessary” under the statute—is only whether public health is at stake.
In policy-speak—as I wrote in a law review article twenty years ago—the difference is between “risk assessment” and “risk management.” Risk assessment is when you notice a leak in your basement, and decide you have to do something about it. Risk management is when you evaluate your options, and decide what to do.
The difference is obvious, and intuitive. But it does mean that the initial decision may not take cost into account.
Thus the EPA argued that the words “appropriate and necessary” do not imply a balancing of costs and benefits, only a determination of public health. Justice Scalia said this was not “reasonable decisionmaking.” As Justice Kagan said in her dissent, the EPA took costs into account later in the regulatory process. But Justice Scalia said that is not enough—the initial decision, too, must include costs.
This is as incoherent philosophically as it is practically. Think about it this way: Who owns the right to your health?
In the EPA’s reasoning, you do. Under the Clean Air Act, if someone else’s activities are going to meaningfully endanger your health, the government is entitled to stop them.
In Justice Scalia’s reasoning, now the law of the land, the toxic chemical emitters do. If it is economically efficient to poison you with mercury—if the costs to them outweigh the benefits to you, calculating an economic value of your health—then they get to do it.
If this seems outrageous, it’s because it is. Justice Scalia had to focus exclusively on the first sliver of the regulatory process in order to make his argument. “EPA’s interpretation precludes the Agency from considering any type of cost,” he writes. But that’s only true at the initial decision of whether to regulate or not (risk assessment). In subsequent decisions of how to regulate (risk management), cost was taken into account many times.
Which is what makes sense philosophically, as well as practically. Deciding whether to regulate a toxic substance should not be an economic decision. Deciding how to do so should be—of course, the government should choose the most efficient method of regulation, and balance costs and benefits appropriately. But the decision of whether a toxic substance is toxic is a matter of science, not money.
Zooming back a bit, Michigan v. US now starts to look a lot like the corporations-are-people cases like Citizens United and Hobby Lobby. In this growing body of cases, corporate interests have been equated with individual ones. Corporations have rights to free speech and the free exercise of religion.
Now their right to make money running dirty power plants is equated with the right of human beings to breathe free of mercury pollution. Your rights, their rights—what’s the difference?
Ironically, Justice Scalia’s originalism—which last week had him arguing that if a practice could be banned in 1868, it could be banned in 2015—would have cut the other way here, if he took it seriously. For the first hundred years of US history, there were no corporations as we know them today. Corporate charters were time-bound, limited, and revocable. Only in the Gilded Age did they attain “legal personhood” as we know it today.
This is the point conservatives often miss in decrying the growth of government and regulation. Yes, government has grown well beyond anything the Founders could have imagined. But the Founders could not have imagined today’s mega-corporations either.
Peabody Energy, one of the primary backers of the current lawsuit, has an annual revenue of $6.79 billion. In 1812, the largest non-banking corporation in America, the American Fur Company, was worth about $1 million—about $17.2 million in 2015 dollars.
In other words, just one of the corporations fighting the EPA’s mercury regulations is worth 394 times the largest US corporation in existence two centuries ago. While the growth in governmental power since then, represented by regulations like the Clean Air Act, has indeed been significant, it is dwarfed by the growth in corporate power.
Michigan v. US now stands for the principle that corporate interests are equal in kind to human interests. Whether the EPA should regulate mercury depends on whether it’s cost-effective to do so, treating the costs to industry and the benefits to health equally.
Because corporations are people, right?
By: Jay Michaelson, The Daily Beast, June 29, 2015
“An Insurgency By Any Other Name”: Republicans Only Believe In Democracy Insofar As It Achieves Their Desired Ends
In my very first post here at Political Animal, I described the possible threat from a Confederate insurgency. In his review of Charles Murray’s latest book, By the People: Rebuilding Liberty Without Permission, Ian Millhiser basically describes it as an insurgency by another name.
Before he gets to the book, Millhiser reminds us of a couple of things. First of all, he points to the fact that it was not that long ago that Majority Leader Mitch McConnell suggested that democracy wasn’t working.
At the height of 2011’s debt ceiling crisis, then-Senate Minority Leader Mitch McConnell (R-KY) offered a candid explanation of why his party was willing to threaten permanent harm to the U.S. economy unless Congress agreed to change our founding document. “The Constitution must be amended to keep the government in check,” McConnell alleged. “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”…
Few politicians are willing to admit what McConnell admitted when he confessed that elections have not “worked” to bring about the policy Republicans tried to impose on the nation in 2011. Elected officials, after all, only hold their jobs at the sufferance of the voters, and a politician who openly admits that they only believe in democracy insofar as it achieves their desired ends gives the middle finger to those voters and to the very process that allows those voters to have a say in how they are governed.
Secondly, he reminds us that, even though an entire industry has risen to debunk Murray, he is still revered by powerful Republicans.
Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”
So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.
Millhiser then does a thorough job of explaining what Murray proposes in this book. It’s important to note that it’s title “By the People” is the exact opposite of what he recommends. Basically what Murray wants to see is an ultra-rich benefactor who would be willing to pay for a legal defense fund that would subvert the work of the federal government.
To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.
These are not merely the ravings of a lunatic right-winger. I was immediately reminded of the fact that Majority Leader Mitch McConnell has advised states to disregard the recent EPA rulings on coal plant emissions while various entities challenge them in court.
For a while now I have been suggesting that this form of Republicanism is best described as a beast in it’s final death throes. That beast is now a minority in this country and as it lashes out, one of the only remaining possibilities for survival is to subvert our democratic process.
I hope that by now you know that I am not one given to hyperbole and conspiracy theories. I don’t say all this to ramp up a fevered reaction. But it’s important to see what is happening here with clear eyes and name it for what it is…a call to insurgency.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, May 27, 2015
“As Evidence Grows For Climate Change, Opponents Dig In”: GOP Has Abandoned Science For The Siren Call Of Their Monied Backers
Water, water everywhere.
Here on the nation’s Gulf Coast, where I live, we’ve got precipitation to spare — severe thunderstorms, overwhelmed sewer systems, and flash floods. It’s hard to remember I’m not living in a land with regularly scheduled monsoons.
Meanwhile, the great state of California is desperately dry as it endures the fourth year of a drought that has already burned through every historical record. It’s been 1,200 years, according to a recent study, since the state has experienced anything like this.
As different as the manifestations are, though, both regions are likely grappling with the effects of climate change. As the Earth warms, droughts will become more frequent and more severe, leading to devastating fires, water shortages and, in some areas, agricultural collapse, according to climate scientists.
At the same time (and this befuddles the layperson), a warmer atmosphere holds more moisture, so areas that tend toward rain will have more of it, leading to more floods. There may also be more snowfall in colder climes, so don’t let a blizzard or two fool you.
According to the National Oceanic and Atmospheric Administration, 2014 was the hottest year on record, with continents and oceans warmer than any year since 1880. And despite a bitterly cold winter in the Northeast and Midwest, 2015 is vying to best that. January, February, and March were the warmest on record for the planet, scientists say. Climate change is real.
Jerry Brown, California’s Democratic governor, knows that. He is living through its havoc and trying to meet it squarely. After enacting rigid new regulations about water use weeks ago, he has just issued new rules on carbon emissions — even though his state already had pretty tough requirements. Good for him.
In a speech, Brown said he wants California to stand out as an example for how to deal with global warming. “It’s a real test. Not just for California, not just for America, but for the world. Can we rise above the parochialisms, the ethnocentric perspectives, the immediacy of I-want-I-want-I-need, to a vision, a way of life, that is sustainable?”
President Obama is also doing what he can. He has called for increased fuel efficiency for vehicles; cars and light-duty trucks should be getting the equivalent of 54.5 miles per gallon by model year 2025. And, in a more ambitious move, the Environmental Protection Agency has set new rules for power plants, requiring them to limit the amount of carbon dioxide they dump into the atmosphere.
But those commonsense measures have met fierce resistance, not only from industries and the billionaires who own them (think the Koch brothers), but also from their lap dogs in the Republican Party. Several GOP state attorneys general — in apparent collusion with energy companies — have sued the EPA to prevent the regulations from taking effect. “Never before have attorneys general joined on this scale with corporate interests to challenge Washington and file lawsuits in federal court,” according to The New York Times.
Senate Majority Leader Mitch McConnell (R-KY), for his part, has urged states to refuse to cooperate in setting targets to limit emissions from power plants. In other words, he has — shades of the Old South — advised them to rebel against federal authority.
(In April, one of his state’s largest newspapers, The Lexington Herald-Leader, printed a powerful editorial rebuking him for that stance. “Mitch McConnell and others who are trying to obstruct climate protections will be regarded one day in the same way we think of 19th-century apologists for human slavery: How could economic interests blind them to the immorality of their position?”)
While the scientific consensus on climate change — that human activity is causing it — grows stronger with each week’s evidence, so does Republican resistance to measures to combat it. Though conservatives once held science in high esteem, they have abandoned it for the siren call of their monied backers.
California’s governor has called this era a “test,” a challenging moment in which we are called to rise above greed, partisanship, and selfish convenience. So far, we’re not doing so well.
By: Cynthia Tucker, Pulitzer Prize Winner for Commentary in 2007; The National Memo, May 2, 2015
“How Rand Paul Is Losing His Distinctiveness”: He’s About As Libertarian As An Ambitious Republican Can Be
As the 2016 presidential race has swung into motion in the last couple of months, we’ve heard a lot about Jeb Bush, and Scott Walker, and even Ted Cruz. But there hasn’t been a lot of news about Rand Paul, whom many people considered the most interesting candidate in the race. Paul has proven adept at gaining positive news coverage, and the fact that he’s a quasi-libertarian makes him a little less predictable than other candidates. In fact, that’s the core of his appeal. He can’t argue that he has a lengthy list of accomplishments; his 2010 Senate campaign was the first time he ran for any office, and he hasn’t authored any important legislation. Being different is what makes Rand Paul compelling.
But there’s only so different you can be. The guy who was supposedly so skeptical of the overuse of American military power is now proposing a huge increase in military spending:
The move completes a stunning reversal for Paul, who in May 2011, after just five months in office, released his own budget that would have eliminated four agencies—Commerce, Housing and Urban Development, Energy and Education—while slashing the Pentagon, a sacred cow for many Republicans. Under Paul’s original proposal, defense spending would have dropped from $553 billion in the 2011 fiscal year to $542 billion in 2016. War funding would have plummeted from $159 billion to zero. He called it the “draw-down and restructuring of the Department of Defense.”
But under Paul’s new plan, the Pentagon will see its budget authority swell by $76.5 billion to $696,776,000,000 in fiscal year 2016.
The boost would be offset by a two-year combined $212 billion cut to funding for aid to foreign governments, climate change research and crippling reductions in to the budgets of the Environmental Protection Agency, and the departments of Housing and Urban Development, Commerce and Education.
We should have seen this coming. Last August, I wrote that while Paul may have a few positions that don’t fit neatly into traditional Republican conservatism, the more central an issue is, the more likely he is to take the expected GOP line:
Even if being a little less ideologically predictable is part of Paul’s appeal, it turns out that there are some positions that are negotiable for a Republican presidential candidate trying to win over primary voters, and some that aren’t. A true libertarian can start off telling those voters that he favors low taxes and small government, and they’ll cheer. He can tell them he’s concerned about the militarization of the police, as Paul recently wrote eloquently about, and they might say, “I still think we need law and order, but I get what you’re saying.” He can tell them that government surveillance of Americans is getting out of control, and they might decide he has a point, even if they’re still concerned about fighting terrorism. But if the libertarian candidate goes on to say that because he believes in maximal personal freedom, he also supports abortion rights, same-sex marriage, and the legalization of drugs, they’ll raise their eyebrows and say, “Hold on there, buddy.”
That’s not what Rand Paul will be saying; on those last three issues, he ranges from firmly Republican (he opposes abortion rights) to essentially Republican (he opposes same-sex marriage but says it should be left up to the states) to somewhat less Republican (he opposes legalization but has suggested some sensible reform of marijuana laws). In other words, he’s about as libertarian as an ambitious Republican can be: pushing the GOP a bit on issues where the party is pulled by competing impulses (like law and order vs. skepticism of state power), but safely in the fold on every issue where there’s consensus in the party.
Why is Paul making this proposal now? It’s partly because the presidential race is getting going, but mostly because this intra-Republican argument over the budget has brought the issue of military spending back near the top of the agenda. If he wants to be competitive in the presidential race, Paul has to get on the right side.
Contemporary conservatism has four main pillars: low taxes, small government, “traditional” social values, and a large military. No one who wants to be the GOP presidential nominee can stray from any of them in any serious way. And this is Rand Paul’s dilemma: His distinctiveness as a candidate comes from the fact that there are areas in which he questions Republican orthodoxy, but if he questions parts of that orthodoxy that Republicans fervently believe in, they’ll reject him. But when he does things like propose a large increase in military spending, he ends up looking just like every other Republican.
By: Paul Waldman, Senior Writer, The American Prospect, March 26, 2015
“A Virtual War On The Poor And Middle Class”: Give House Republicans Credit For Producing A Budget This Cruel
Everyone condemns politicians for being too quick to pander, too concerned with doing the popular thing, too willing to hide what they really believe in order to curry favor with an unmerciful electorate. So when a group of politicians throws caution to the wind and tells us what they really think despite the political risk, they deserve our praise. So it is with the House Republicans, who have just released their new budget.
That isn’t to say the budget is free of gimmickry or outlandish projections (we’ll get to that in a moment). But let’s look at some of the rather notable things it would do:
Turn Medicare into a voucher program. This is accompanied by a lot of rhetoric about how the magic of the market will hold down costs (just as it has with private insurance — oh, wait) and free seniors from the tyranny of their government insurance plan. Let’s see how that will go over.
Roll back the Affordable Care Act’s expansion of Medicaid and lay the groundwork for further cuts. All those millions of low-income Americans who got coverage through the expansion are suffering terribly, because “Medicaid’s promises are empty, its goals are unmet, and its dollars are wasted.” House Republicans would liberate them from this oppression by taking away their health insurance. The rest of the program would be block-granted so that states could have “flexibility,” which in practice means the flexibility to dump even more patients from their coverage.
Repeal the rest of the ACA. The subsidies that have allowed millions of people to afford insurance? Gone. Protection against denials for preexisting conditions? Not anymore. If you were expecting this to be accompanied by a few comically vague words about “patient-centered reforms” with which the ACA would be replaced while 16 million people are wondering what to do about the coverage they lost, then you’ve been paying attention.
Cut regulations on Wall Street. They’ve been having a real hard time over there, and they could use a helping hand.
Cut environmental regulations. Let’s face it, if the environment is ever going to learn to take care of itself, it needs a little tough love.
Cut Pell grants, which they describe as “targeting Pell Grants to students who need the most assistance.”
Block-grant food stamps, or turn them into a “State Flexibility Fund.” There’s that word again.
Most of these ideas are presented without any actual dollar figures attached to them, but there is “a magic asterisk” in a table located in an appendix, as Max Ehrenfreund points out. This is more than a trillion dollars of savings they claim they’ll get from “Other Mandatory” spending. Ehrenfreund explains:
Other than health care and Social Security, mandatory spending includes a range of programs such as food stamps, disability payments for veterans, the earned income tax credit, and Pell grants for college students. The budget document did not specify which would be cut. Even presuming very large cuts to these programs, though, it was still unclear how lawmakers expected to come up with $1.1 trillion, said Bob Greenstein, president of the Center on Budget and Policy Priorities.
By comparison, the Republican majority in the House voted in favor of reducing the budget for food stamps in 2013. The controversial measure passed only narrowly, with every Democrat and a few Republicans opposed. Many worried the cut was too severe, but it totaled $40 billion, just a sliver of the savings claimed in this week’s proposal.
At this stage, it isn’t so terrible for their proposals to lack specificity; this part of the budget process is meant to sketch a broad outline, while later legislation will set all the particulars. But let’s give the House Republicans credit. They aren’t shying away from talking about voucherizing Medicare (as their Senate colleagues did), and the rest of the document lays out a virtual war on the poor and middle class. They may toss the word “opportunity” in here and there, but the document is a bracing statement of Republican ideology.
Which is as it should be. Sure, the White House is going to criticize it, because the Democrats’ priorities are very different. Now we can have a debate. Should we turn Medicare into a voucher program? Should we toss millions of people off Medicaid and take away the subsidies that allow millions more to afford insurance? Should we cut food stamps and education grants? What are the alternatives? Those are the questions that debate should address, and then the two sides will have to arrive at a budget that incorporates the answers.
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line Blog, The Washington Post, March 18, 2015
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