Tangle - The Supreme Court's EPA ruling.

Episode Date: July 5, 2022

In a 6-3 ruling last week, the Supreme Court agreed with Republican-led states and coal companies that the 1970 Clean Air Act did not give the Environmental Protection Agency expansive power to regulate carbon emissions. Plus, some quick hits from the holiday weekend.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I am your host, Isaac Saul, and I hope you had a great Fourth of July vacation. We obviously took a few days off over here. I'm feeling really good and refreshed, which is important because today we are covering the Supreme Court's ruling in an EPA versus some states, notably West Virginia case, that is a little bit complex and very, very important for the country. But as always, before we jump in, we'll start off with some First up, at least six people were killed in a mass shooting at a 4th of July parade in Highland Park, Illinois, a Chicago suburb. A person of interest in the shooting has been arrested.

Number two, the Supreme Court ruled in favor of the Biden administration's authority to end the Remain in Mexico policy. Separately, Justice Stephen Breyer formally retired and Judge Katonji Brown Jackson was officially sworn in. Number three, President Biden said he supports an exception to the filibuster rules in order to codify abortion protections into law. Number four, Akron, Ohio declared a state of emergency after protests broke out over the fatal police shooting of Jalen Walker. Number five, WNBA star Brittany Griner sent a letter to President Joe Biden pleading for help to be released from a prison in Russia. The Supreme Court also released a decision on a case involving the EPA, which will have major implications for the agency's efforts to fight climate change going forward. By a 6-3 vote, the court ruled the Clean Air Act, first established in 1963,

does not give the environmental agency the authority to regulate greenhouse gases from power plants that contribute to global warming. They decided that the EPA lacks the power to make such a big or to use a legal term, a major. And that really is the legal term in this case, a major decision. In a 6-3 ruling last week, the Supreme Court agreed with the Republican-led states and coal companies that the 1970 Clean Air Act did not give the Environmental Protection Agency expansive power to regulate carbon emissions. The ruling has the potential not just to limit the EPA's ability to reduce emissions, but also reduce the regulatory power of agencies across the executive branch of the federal government. The majority opinion was penned by Chief Justice John Roberts. All three liberal justices on the court dissented. The crux of the case was the Clean Power Plan, the Obama-era regulatory guidelines to fight climate change by reducing

carbon pollution from coal-fired power plants. That plan set individual goals for each state to cut power plant emissions and directed companies to cut emissions by reducing output or shifting from coal-fired power to lower emission forms of power generation. However, the rule never went into effect. Several states and private parties immediately challenged its legality, and in 2019, the Trump administration repealed the CPP. It argued that the Clean Air Act, which gives the EPA the power to find the quote, best system of emission reduction for buildings that emit air pollutants, exceeded the EPA's authority. The Trump administration argued that the EPA is only

allowed to implement measures that apply to individual power plants, not to industry-wide goals like those laid out in the Clean Power Plan. After repealing the CPP, the Trump administration replaced it with the Affordable Clean Energy Rule, which gave states and power plants more flexibility by allowing looser rules. Last year, the D.C. Circuit vacated both the Trump administration's repeal of the CPP and the ACE rule and sent the case back to the EPA for additional proceedings. Section 7411, the Court of Appeals explained, does not require the more limited view of the EPA's authority that the Trump administration adopted. That's according to Amy Howe, who reported on this case.

The Supreme Court on Thursday reversed that D.C. Circuit's ruling. First, Justice Roberts explained that the Republican-led states and coal companies could challenge the rule at all. Since neither ACE nor CPP are currently in effect, the court had to first justify ruling on the merits, which Roberts said it could do given that the Biden administration was likely to reimpose a similar or more expansive regulatory standard. Then Roberts argued that the greenhouse gases regulation violated the quote-unquote major questions doctrine, an idea the court created that says Congress must first make it clear when it is giving an administrative agency the power to make decisions of vast economic and political significance. Air Act had been rarely used in the preceding decades, Roberts argued there was little reason to think Congress believed the EPA could use it to implement the kind of sweeping regulation the CPP calls for, especially since Congress has rejected such sweeping regulation before. Roberts said capping carbon dioxide emissions at a level that would force the nation to transition

from coal-generated electricity may be the right solution for climate change, but only Congress or an agency it clearly grants that authority to can make such a decision. The EPA, Roberts argued, did not have such authority expressly granted by Congress. Justice Elena Kagan dissented and was joined by Justices Stephen Breyer and Sonia Sotomayor. In her dissent, Kagan argued that there was no reason for the court to take the case since the Biden administration was planning to issue a new rule separate from the Clean Power Plan and the Affordable Clean Energy Rule. She also argued that Congress intended to give the EPA authority to navigate generation shifting precisely because of its expertise on

environmental issues and that the court was appointing itself instead of Congress or the expert agency as the decision maker on climate policy. The ruling was the final major decision of a term in which the conservative majority struck down Roe v. Wade, expanded gun rights, and expanded religious rights in public spaces. The court uses logic consistent with arguments the court advanced during the pandemic to strike down workplace COVID testing requirements and the CDC's federal eviction moratorium. President Biden has said he hopes to cut greenhouse gas emissions by half before 2030 and was planning to lean heavily on the EPA to accomplish that goal. Power plants account for about 30% of the nation's carbon dioxide output. In a moment, we're going to hear some arguments from the left and the right about this ruling and then my take.

First up, the left argues that the Supreme Court is sabotaging public health and regulatory agencies. They contend that Congress and the court should defer to the experts inside the regulatory agencies they created. Some argue the court is overstepping its authority by taking the case at all. The New York Times editorial board said the court is sabotaging efforts to protect the public health and safety. The court's ruling constrains any effort to tighten restrictions on carbon dioxide emissions from power plants. It also threatens the Biden administration's ability to impose new limits on tailpipe emissions from cars and trucks and on methane emissions from oil and gas facilities, the board said. As the three members of the court's liberal minority wrote in a stinging dissent, the majority's decision strips the EPA of the power to respond to the most pressing environmental challenge of our time. The Biden administration, already struggling to persuade Congress to invest in renewable energy

and compelled by Russia's invasion of Ukraine to push for increased production of fossil fuels, once again finds its ambitious goals for confronting climate change slipping beyond reach. The court's adversarial posture means that the administration must double down on its efforts to win congressional support for its spending plans. President Biden and Democratic leaders should also press to pass legislation clarifying the EPA's authority to regulate emissions. Thursday's ruling also has consequences far beyond environmental regulation. It threatens the ability of federal agencies to issue rules of any kind, including the regulations that ensure the safety of food, medicines, and

other consumer products that protect workers from injuries and that prevent financial panics. The EPA clearly has the legal authority to set an acceptable standard for emissions, in this case of carbon dioxide, and then impose restrictions on emitters, in this case coal-fired power plants. The court did not contest these facts. Instead, it ruled that the Clean Air Act does not provide the EPA with sufficient authority to achieve those emission standards. In MSNBC, Jessica Levinson said this case strikes two heavy blows. The first blow is to the ability of the EPA to help save us from climate change-induced disasters such as flooding, droughts, and extreme heat waves, Levinson wrote. In the words of Justice Elena Kagan in her dissent, today the court strips the Environmental Protection Agency of the power Congress gave it to respond to the most pressing environmental challenge of our time. As if that weren't consequential enough, the second blow is that this decision is about

pulling back on the power of all federal agencies or the so-called administrative state, Levinson wrote. The court is essentially requiring that federal agencies get specific authority from Congress before acting on major issues such as climate change. In the end, the court is pushing the ball back into Congress's court, Levinson said. In the abstract, that may not seem particularly consequential. Congress can act to provide the EPA with more authority. It is worth noting that it is not entirely clear how much specificity the court would actually require and whether Congress could achieve that level of specificity. But Congress almost certainly will not act at all. As we have seen over the past two years, even with a Democrat in the White House,

even with Democrats holding a majority in both the House and the Senate, Democrats cannot act on major pieces of legislation without either getting 10 Republican senators to join them, insert laughter here, or finally getting rid of the filibuster. In the new republic, Simon Lazarus said the masks are off. More than any of the cascade of ostentatiously hard right decisions this term, more even than its Dobbs v. Jackson Women's Health Organization repudiation of a half-century-old constitutional right to abortion, this decision confirms clues from prior terms, that the overriding priority of this court is augmenting

its own power, Lazarus said. Chief Justice John Roberts' opinion for the court fairly flaunts his intention to claim the role of final arbiter of substantially any major battle it chooses to pluck from the nation's policy of political agendas. Further, the decision manifests. Indeed, as pointedly observed by Liberal Justice Elena Kagan's dissent, it reaffirms that on global warming-related matters, these ultra-conservative justices, modus operandi, has from the beginning been to obstruct the EPA and to conform national policy to the agendas of their Republican patrons and sponsors, and the mega-donors who fund those sponsors who, lest we forget, funded the campaigns that secured these justices' nominations and confirmations, Lazarus wrote. Forget the text or purpose of relevant law,

fidelity to traditional conservative textualism pretensions, or even the interests of relevant big businesses, in this case the electric power industry, which strongly supported the EPA's climate strategy. All right, that is it for what the left is saying, which brings us to what the right is saying. The right argues this case is not about climate change, but about limitations on federal bureaucracy and authority. Some say it is absurd to propose the EPA had the authority to implement regulatory guidelines as sweeping as the Clean Power Plan without Congress's explicit authority. Many argue this should motivate Congress to do its job and legislate. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police

procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur and 100% protection is not guaranteed. Learn more at flucellvax.ca. In the Washington Post, George Will said the decision was the biggest of all and the court got it right. The Clean Air Act authorizes the EPA to impose the best system of emission reduction for the carbon emitting activities, Will right. The Clean Air Act authorizes the EPA to impose the best system of emission reduction for the carbon-emitting activities, Will wrote. The EPA construes this as authorization for it to, if this seems best, restructure the nation's power sector by ordering generation shifting in electricity production from coal to natural gas and renewables, e.g.

wind and solar. Roberts, joined by Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas, invokes the major questions doctrine. It holds that when an executive agency claims a power to order changes of vast economic and political significance, e.g. the EPA's proposed multi-billion dollar restructuring, mandatory capital investments, higher energy prices, of a huge sector of the economy, courts should be skeptical of such claims unless legislation clearly and explicitly authorizes it. Otherwise, the agency is illegitimately lunging beyond its law enforcement function. By pruning the EPA's pretensions, the court has signaled a quickened interest in policing the separation of powers,

Will said. Hysteria is constant today, so hyperbole is too, as when on June 20th, the New York Times lead article on top of page one, columns five and six, warned readers to be frightened that the court might do what it in fact did Thursday. The Times said a ruling against the EPA could severely limit the federal government's authority to reduce carbon dioxide from power plants, but the court's Thursday decision did not diminish the government's authority. It said the primary authority must be explicitly exercised by Congress, which, although progressivism often forgets this, is part of the government. The Times also warned that the EPA case could eviscerate the federal ability to address climate change. No, the court has required only that more responsibility be taken by Congress, which is,

although progressives often regret this, a federal institution. In the Wall Street Journal, Kimberly Strassel said the justices sent a message to Congress. Sweep away the opinion's numbing technical descriptions and the ruling is a joy to read, Strassel said. The six conservative justices on the court, in an opinion by Chief Justice John Roberts, have officially declared the major questions doctrine, a concept that has appeared in a handful of past rulings, to be a living, breathing principle. The federal bureaucracy is no longer allowed to impose programs of major economic and political significance on the country absent clear

congressional authorization. Hallelujah. That's a bummer for the executive branch and its army of bureaucrats, which for decades has been acting as if it were king. In this case, the Obama administration was frustrated Congress wouldn't enact a law empowering it to regulate climate emissions, Strassel said. So it magicked up the authority

out of the 1970 Clean Air Act. Democratic administrations in particular are growing brazen and delegating to themselves these new superpowers. But it's equally a bummer for Congress, which was essentially just told by the court to get off its lazy backside and resume the people's work. It's easy to bash the administrative state, but bureaucrats are simply filling a vacuum created by a legislator that these days can rouse itself to little more than naming a post office. Federal agencies must In the Washington Examiner, Tim Carney said the left makes audacious changes, then calls it radical to undo them.

Chief Justice John Roberts, in his opinion, said Congress must point to clear congressional authorization for the power it claims. That is so obvious it should go without saying, Carney wrote. The minority of the court's justices showed little concern for finding specific congressional authorization. Instead, they began their dissent by explaining that they think climate change is a really big deal, as if that was a relevant rebuttal to the constitutional rule that the executive cannot make laws. The minority took the words Congress wrote about what the EPA could force a power plant to do, adopt the quote-unquote best system for reducing emissions at its own plant, and said those words basically give the EPA the power to create, to legislate, whatever the EPA believes is the best system of emission reductions for greenhouse gases in the

whole area power grid, Carney said. The liberal's novel reading of the statute has no limits. Cratering the economy or curbing the population are the best system of emission reduction, some argue. Under the court's reading, Congress has delegated to the EPA the power to take steps that would curb birth rates, set immigration policy, or ruin our economy. All right, that is it for the left and the right's take, which brings us to my take. for the left and the right's take, which brings us to my take. What's so odd about this case are its circumstances. For starters, I don't really think the court should have taken the case up in the first place, which is probably why the liberal justices focus so much on that in their dissent. As Jason Lincolns argued, the decision to take the case at all was tradition smashing. Remember, there is no rule on the books for the parties to challenge here.

The Biden administration has not replaced either the Obama-era Clean Power Plan or the Trump-era Affordable Clean Energy Rule, so it's truly a hypothetical exercise. A federal court issuing an advisory opinion was, before this ruling, extremely rare. It's a rather simple concept. The Supreme Court should only adjudicate live cases or controversies, not hypothetical future disputes. Otherwise, it is doing the preemptive legislating itself. This has been true since 1793, when the Supreme Court refused to advise George Washington on the legal status of our relations with France's new government. For a conservative majority that has spent so much of this term emphasizing deeply rooted histories, precedent, and textualism, the idea

that it would take up this challenge in the first place validates criticism that this court's decisioning is politically motivated. The other bizarre thing is the tone of the coverage around it. Both the right and the left have framed this as some sort of corporate interest reign free to destroy the planet's story, but the reality is actually the opposite. Business interests relevant to this case wanted the kind of regulation the EPA was proposing. As Simon Lazarus rightly observed, defending the EPA's approach to regulating greenhouse gases as parties was a phalanx of mega power companies, including Con Edison, Exelon, National Grid USA, and Pacific Gas and Electric. Indeed, industry experts understand that a shift away from coal

fired plants requires stable and predictable regulation, not the constant litigation this ruling will invite. Despite the rules never even formally going into effect, the private industry has largely accomplished the goals Obama set out in his Clean Power Plan on its own because the EPA accurately assess what reasonable and achievable changes look like to combat climate change. To hear the court now say that regulation was too sweeping and exceeded the agency's authority is head-scratching given that the EPA's assessment has now been totally validated. With all this aside, the distinction the court seems to have grappled with is the difference between making laws and creating the rules that make laws function. Executive agencies, generally speaking, make rules based on Congress's legislation. If Congress bans drinks that have a dangerous mix of caffeine and alcohol, the FDA could determine what those levels are and then create rules to limit X amount of caffeine mixed with Y amount of alcohol

from being present in the same drink. The difference there is nuanced, but important. In this case, the court is taking the position that the Clean Power Plan crossed the threshold into what is now clearly defined as the major questions doctrine. To be frank, on that assessment, I'm actually quite torn. On the one hand, the EPA's authority to set acceptable emission standards for carbon dioxide seems obvious, as is its legal

authority to then restrict emitters like coal-fired power plants. On the other hand, Obama himself described the Clean Power Plan regulatory guidelines as an effort to remake America, an effort he pursued without specific congressional authority. I certainly want regulatory agencies to expressly and clearly have the capacity to remake America before doing so. The good news for anyone like me worried about clean air and climate change is that this ruling essentially confirms what we already know. We can't regulate our way out of climate change. The path to reducing carbon emissions looks the same today as it did before the ruling. We need investment and buy-in from the private sector,

legislation from Congress, and state-level support. As Joseph Majkut explained, there is plenty of reason for optimism. The power sector just beat its emissions target by a decade. The cost of renewables and natural gas is still falling, and a reconciliation bill is still alive in Congress that could create tax credits for clean energy. To sum all that up, the court took up a case about a regulatory guideline that never went into effect. It struck that plan down under the notion that the agency which implemented it exceeded its

authority despite the fact the private sector got there early on its own without those rules ever going into effect. The ruling was largely framed as a win for businesses to run unencumbered even though they actually supported the expansive regulation. And while the ruling is a major blow to the EPA's authority, it seems clear to me that the much-needed emissions reduction goals are still achievable given entire industries are already outpacing them and the path to getting there is still the same. All right, that is it for my take. We are going to skip today's reader question because the podcast got a little bit long and, you know, we want to keep it digestible and within our typical time frame. But remember, you can submit a reader question by replying to our newsletter. You can just reply to the email

or you can fill out a form. There's a link to it in today's newsletter. All right, next up is our story that matters for the day. Health insurers and employers began to publicly post the prices they pay for health care services last week, kicking off a massive Trump era price transparency rule. These prices, covering expenses like doctor's visits and lab tests, became available publicly after the Centers for Medicare and Medicaid Services set a deadline of July 1 for private firms to begin complying with the rule. So far, the data is being published in massive, machine-readable digital file formats that are not easily accessible to consumers. However, as the Wall

Street Journal reported, the insurer data required under a separate federal rule issued in November 2020 is expected to cover much more of the healthcare ecosystem, wrapping in the prices for freestanding surgery centers, clinics, private doctor practices, labs, and other types of medical service providers, the Journal reports. All right, that's it for our story that matters, which brings us to our numbers section. Four in 10 is the number of Americans who live in a state, city, or territory that is committed to reaching 100% clean electricity by 2050. The percent of Biden's climate change agenda that has been enacted so far is 9%. The percentage of Americans who want to see more done by Congress to address climate change is 61%.

The percentage of Americans who want to see more done by corporations to address climate change is 70%. The percentage of Americans who said they are alarmed by global warming is 33%. our alarm by global warming is 33%. All right, that's it for our numbers section. So last but not least, our have a nice day story for today. Over 100 countries have joined the pack to make 30% of its oceans protected areas free of fishing or drilling. Because oceans produce half of the world's oxygen

and absorb 31% of its carbon dioxide, they are critical to the environment's health. Last week, Colombia's outgoing president, Iván Duque, said it had become the first country to achieve the goal of protecting 30% of its oceans. About 8% of the world's oceans are now protected. Alright everybody, that is it for today's podcast. As always, if you want to support our work, you can go to retangle.com slash membership and become a member. You can also just give us a five-star rating,

share the podcast with friends, spread the word. We're trying to get people out of their political bubbles, and we need your help. We'll be right back here, same time, tomorrow. Peace. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager,

Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com. Thanks for watching! character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases.

What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.