June 27, 2014

The sneaky hand of The Umpire may lie behind SCOTUS ruling on #carbon

On the surface, it seems like the Environmental Protection Agency got, if not everything it wanted on the right to regulate greenhouse gas emissions from power plants, then 83 percent of a loaf, as Justice Antonin Scalia declared on reading his decision, as I blogged about earlier this week.

But, upon further reading of his decision, I say: "Maybe not."

That's because, per the Texas Tribune, it's seemingly a kind of illogical win. The three conservatives who opposed the EPA's "tailoring" of emissions levels for greenhouse gases, nonetheless stood by it having the authority to regulate GHGs even though GHGs aren't specifically mentioned in the Clean Air Act, just unenumerated future pollutants.  If Congress is assumed, by the three "swing conservatives," to have given the EPA the authority to figure out what seeming pollutants, per post-1970s analysis, need regulation, then surely Congress gave EPA the same authority to set the standards for what counts as pollutants or not.

Even though Scalia read the decision, at heart, I'm seeing the sneaky hand of The Umpire, aka Chief Justice John Roberts, the same sneaky hand that was behind his switch on Obamacare, a switch done with the side benefit of killing off forcible Medicaid expansion, forcing the Obamacare non-user tax to be called a tax and not a few, and killing dead a highly expansive reading of the Commerce Clause.

One should never, ever, underestimate why The Umpire switches away from his seemingly "normal" side.

What would Roberts, et al, gain here?

First, putting in a box certain expansive readings of the Clean Air Act. Now, any other "future pollutant" the EPA deems worthy of regulation will have to be (on paper) regulated at the same standards as the original pollutants who had pollution levels specifically spelled out by Congress. This would be a smaller-scale version of his Commerce Clause tack on Obamacare.

Second, per the Trib piece, the EPA simply can't regulate every facility it seemingly now needs to regulate for GHGs. Instead, and in order to avoid suits, or at least avoid losing them, it may go to a cost-benefit analysis. And conservatives smile whenever a federal regulation can be forced into a cost-benefit analysis straitjacket.

I'm probably just scratching the surface of some 11-dimensional chess The Umpire is playing. I suspect that what happened is that Kennedy wanted to switch first. Roberts realized there was no way of stopping him, and wanted to go along, but with a controlled ruling like this. He persuaded Nino of the diabolical factor, and things went from there.

So, in reality, my original thought that EPA largely won this case may not be so true.

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