June 24, 2014

The Supreme Court issued three opinions yesterday. Here’s SCOTUSblog’s Tuesday Round-Up, with a brief summary of each case, along with links to commentary.

The big news related to Utility Air Regulatory Group v. EPA, No. 12-1146. The case involves the Clean Air Act and the EPA’s authority to regulate stationary sources of greenhouse gases. If I understand the decision correctly—a somewhat dubious proposition, and the major theme to this post—the EPA designed a regulatory scheme that amounted to a “less than allowed” amount of regulation, as adherence to the authority it was given would have created an unadministrable program. “No, no,” said Justice Antonin Scalia, the law neither permits nor compels such an outcome.

The day job calls, so I must be brief. Although Justice Scalia authored the opinion of the Court, and the Court does limit the EPA’s power, the general consensus reflects a victory for EPA and efforts to address climate change. Aside from the commenters in the SCOTUSblog round-up, here’s EPA Claims Victory in SCOTUS for Obama’s Climate Change Plan from TPM. Written by TPM’s founder Josh Marshall, the teaser at the blog site reads:  “President’s new greenhouse gas regs get a significant victory at the Supreme Court.”

Still, there’s something disconcerting about a group of nine smart judges deciding how to deal with a complicated regulatory regimen, where the agency charged with creating and administering the program found a less restrictive way to regulate because following the law to the letter resulted in an “unadministrable” program. Now, I’m an attorney who took an oath to follow the law, and I think following the law is a good thing. So, what?

We may have waltzed our way into Pogo-land, where “we have met the enemy, and he is us.” The enemy is our governmental, business, and social institutions, and their intersection with our problems. We have a 1787-model organizational structure, dealing with 2014 problems. Sadly, that’s not the half of it, for this system should be looking forward, identifying 2024-2034 problems and identifying processes for dealing with them. (In nonprofit-land, where I lived, once upon a time, many CEO/EDs use “what keeps me up at night” as a template for visioning.)

Certainly, our Constitution has been gussied-up over the years, with amendments and interpretations. Congress has written lots and lots of laws over more than 225 years, and we have an abundance of regulations, court decisions, and other authorities to guide our conduct. Nevertheless, we still have a system in which 51 or 60 of 100, 218 of 435, and one (POTUS) are necessary to pass a law, and five of nine are necessary to uphold it when it gets challenged. That system works, more or less, with simple issues; however, it’s not the simple issues that matter most. And with the hard stuff, we’re stuck!

We face very complicated issues. There’s no shame in not understanding climate science if you’re not steeped in science. Or, for that matter, the intricacies of a regulatory regimen. But we have a system in which almost every Republican member of the House of Representatives lives in the “prove it” camp, and many have as their newest meme “I’m not a scientist,” whatever that means. (Seems like it ought to mean, “So I can’t weigh in on this one!”) We have judges who interpret laws, mostly, where those laws have been written by a bunch of people who are not scientists, and where the science and events outpace the willingness and ability of the Congress to deal with the issues. And our little planet just keeps getting warmer and warmer!



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