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“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

October 18, 2013 Posted by | Environment, John Roberts, Supreme Court | , , , , , , | Leave a comment

“The GOP Has It Backwards”: Republicans Want To Tax Students And Not Polluters

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

July 8, 2013 Posted by | Education, Environment | , , , , , , , | Leave a comment

“A Troubling Dynamic”: Weather Forecasters And Climate Scientists Live On Different Planets

Here in Atlanta, we’ve had a string of days in which the temperature has hovered around 70 degrees — more representative of late spring than late autumn. The balmy weather has left me in a funk.

Sure, I’ve enjoyed the chance to put my toddler on the back of my bike and take her out for a ride. Yes, it was pleasant to don a short-sleeved shirt to put up my outdoor Christmas lights. Of course, I like the long chats with my neighbors, who walk their dogs at a leisurely pace instead of rushing to get out of the chill.

But I fear the unseasonable temperatures are a harbinger of a slow-moving disaster — a serious threat to my child’s future. What will it take to get people focused on the crisis of climate change?

It would certainly help if TV weather forecasters at least noted the possibility of a link between the un-December-like weather and disastrous global warming. They are popular figures who are embraced by their local viewers as climate authorities. If they helped the public understand the dangers of global warming, the voters, in turn, would demand solutions from their elected officials.

But there’s a troubling dynamic that helps to explain why you’re unlikely to hear about global warming when you’re watching the weather report on the 6 o’clock local news: Many TV weathermen — and weather women — dispute the science of climate change, believing it’s a “scam,” according to a recent study. Their ignorance has contributed to the public’s apathy.

Even though cooler weather is expected soon, 2012 is still on track to be among the hottest years on record, according to the World Meteorological Organization, a United Nations agency. With the exception of 1998, the hottest years on record have occurred since 2000, climate scientists say. The longstanding consensus among scientists is that greenhouse gases are warming the Earth, melting the polar ice caps, raising sea levels and creating untold environmental havoc.

Yet, many television weather forecasters — who are not climate scientists — remain skeptical. Only about 19 percent believe that human activity is the primary cause of climate change, according to a 2011 study by George Mason University and the University of Texas. A similar fraction — 18 percent — knows that scientists have concluded that human activity is warming the planet, the study said.

Quiet as it’s kept, you don’t have to know much science to be a TV weather forecaster. Those with science degrees tend to be meteorologists with expertise in short-range climate models. They can predict the weather a week from now with relative accuracy, but they know little about long-term climate trends.

By contrast, climate scientists usually have graduate degrees and are associated with research institutions and universities. They use complicated models to study long-term weather patterns.

But there is hope the two groups can come to a consensus that elevates the discussion: TV weather forecasters are often members of the American Meteorological Society, which represents a broad range of experts in atmospheric sciences. Marshall Shepherd, the group’s president-elect, wants to help to educate “our colleagues in the broader community,” including TV weathermen, he told me.

A former NASA researcher who currently heads the atmospheric sciences program at the University of Georgia, Shepherd said: “We want to forge an environment where all viewpoints are welcome. At the end of the day, though, our position will be based on the science.”

That rankles some in the ranks. Earlier this year, when the AMS issued a strongly worded statement on human-caused climate change, Glenn Burns, the popular weatherman for the Atlanta ABC affiliate WSB, was flippant in response to a question about it.

“Our climate has been changing since the beginning of time. Only the civilizations that adapted to it have survived. That should be our goal,” he said. And Burns is by no means alone in downplaying climate change.

Here’s hoping that Shepherd and the AMS can persuade TV forecasters to accept the scientific consensus. If they engaged their viewers on the subject, they could help to elevate climate change as a political concern. We’re running out of time before those balmy December days prove costly.

 

By: Cynthia Tucker, The National Memo, December 8, 2012

December 9, 2012 Posted by | Global Warming | , , , , , , , , | Leave a comment

Government Shutdown: It’s Not Really About Spending

If the federal government shuts down at midnight on Friday — which seems likely unless negotiations take a sudden turn toward rationality — it will not be because of disagreements over spending. It will be because Republicans are refusing to budge on these ideological demands:

• No federal financing for Planned Parenthood because it performs abortions. Instead, state administration of federal family planning funds, which means that Republican governors and legislatures will not spend them.

• No local financing for abortion services in the District of Columbia.

• No foreign aid to countries that might use the money for abortion or family planning. And no aid to the United Nations Population Fund, which supports family-planning services.

• No regulation of greenhouse gases by the Environmental Protection Agency.

• No funds for health care reform or the new consumer protection bureau established in the wake of the financial collapse.

Abortion. Environmental protection. Health care. Nothing to do with jobs or the economy; instead, all the hoary greatest hits of the Republican Party, only this time it has the power to wreak national havoc: furloughing 800,000 federal workers, suspending paychecks for soldiers and punishing millions of Americans who will have to wait for tax refunds, Social Security applications, small-business loans, and even most city services in Washington. The damage to a brittle economy will be substantial.

Democrats have already gone much too far in giving in to the House demands for spending cuts. The $33 billion that they have agreed to cut will pull an enormous amount of money from the economy at exactly the wrong time, and will damage dozens of vital programs.

But it turns out that all those excessive cuts they volunteered were worth far less to the Republicans than the policy riders that are the real holdup to a deal. After President Obama appeared on television late Wednesday night to urge the two sides to keep talking, negotiators say, the issue of the spending cuts barely even came up. All the talk was about the abortion demands and the other issues.

Democrats in the White House and the Senate say they will not give in to this policy extortion, and we hope they do not weaken. These issues have no place in a stopgap spending bill a few minutes from midnight.

A measure to prohibit the Environmental Protection Agency from regulating greenhouse gas emissions came up for a Senate vote on Wednesday and failed. If Republicans want to have yet another legislative debate about abortion and family planning, let them try to pass a separate bill containing their restrictions. But that bill would fail, too, and they know it, so they have chosen extortion.

The lack of seriousness in the House is reflected in the taunting bill it passed on Thursday to keep the government open for another week at an absurdly high cost of $12 billion in cuts and the ban on District of Columbia abortion financing. The Senate and the White House said it was a nonstarter. Many of the same House members who earlier had said they would refuse to approve another short-term spending bill voted for this one, clearly hoping they could use its inevitable failure in the Senate to blame the Democrats for the shutdown. What could be more cynical?

The public is not going to be fooled once it sees what the Republicans, pushed by Tea Party members, were really holding out for. There are a few hours left to stop this dangerous game, and for the Republicans to start doing their job, which, if they’ve forgotten, is to serve the American people.

By: Editorial, The New York Times, April 8, 2011

April 8, 2011 Posted by | Abortion, Congress, Conservatives, Consumers, Democrats, Economy, Federal Budget, GOP, Government Shut Down, Governors, Health Reform, Ideology, Lawmakers, Planned Parenthood, Politics, Public, Public Employees, Republicans, Right Wing, Senate, State Legislatures, Tea Party, Voters, Women's Health, Womens Rights | , , , , , , , | Leave a comment

Convenient Amnesia: House Republicans and The EPA

House Republicans are vigorously denouncing the Environmental Protection Agency as a rogue agency engaged in a borderline-illegal effort to regulate greenhouse gases. If anyone believes this to be a principled position, it is useful to recall that under President George W. Bush, the E.P.A. argued for very similar policies, based on the same reading of its responsibilities.

This reminder comes courtesy of Representative Henry Waxman, a California Democrat, who released a personal letter written by Mr. Bush’s E.P.A administrator, Stephen Johnson, imploring the president to allow his agency to begin regulating carbon dioxide, the main greenhouse gas. The letter was written in January 2008, only a month after the Office of Management and Budget — almost certainly under orders from Vice President Dick Cheney — had rebuffed a similar request.

Mr. Johnson reminded the president that the Supreme Court had said in 2007 that the federal government was required to regulate carbon dioxide if it endangered public health. He said that he had been persuaded that it did threaten public health and that both the law and the “latest science of climate change” had left him no choice but to issue a formal “endangerment finding.”

Mr. Johnson then outlined what he called a “prudent” plan for a multiyear reduction in emissions from vehicles and large industrial sources like power plants and refineries. So far as is known, he never got a reply.

That left the job of controlling carbon dioxide to Lisa Jackson, President Obama’s E.P.A. administrator. She issued an endangerment finding in 2009, and last year presented a plan for regulating emissions that closely resembles Mr. Johnson’s. That historical parallel did not deter Republicans from spending two hours on Wednesday grilling Ms. Jackson for “regulatory overreach.”

It is also worth recalling that the “cap and trade” proposal for controlling greenhouse gas emissions, so maligned by Republicans these days, was first proposed by President George H. W. Bush in 1990 to control acid rain. Partisan amnesia may play well with some voters, but it is disastrous public policy.

By: Editorial-The New York Times Opinion Pages, February 12, 2011

February 14, 2011 Posted by | Environment, Environmental Protection Agency | , , , , , , , , , | Leave a comment

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