Volkswagen Is Not the Only One with a “Defeater Device”


It has always seemed odd that the ultimate power of man over nature—science—is supposed to be what will preserve the naturalness of the environment.

Last time we celebrated Earth Day, President Obama had no doubts when he told the “science guy” Bill Nye that it is “part of our constitutional duty” to promote science for the environment. “I’m not a scientist either, but I know a lot of scientists,” said the President. “I have the capacity to understand science. I have the capacity to look at facts and base my conclusions on evidence.”

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Mass v. EPA Reconsidered: Our Duplicitous Court

Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.

By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.

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Climate Change, Part I: Catastrophe

Tomorrow and the day after, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Rogers, Sentelle, and Tatel) will hear oral arguments in a raft of cases challenging the Environmental Protection Agency’s rules on the regulation of carbon dioxide (CO2) and other greenhouse gases (GHG). In its scope and consequences, the EPA’s climate change program exceeds even ObamaCare and Dodd-Frank: it threatens to engulf any firm, facility, and product that emits CO2 above minimal threshold amounts. However, the EPA’s program in this case does not rest on a 2,000-page enactment by a temporarily deranged Congress, nor even on a unilateral bureaucratic power grab. Rather, it proceeds, with seeming and depressing inexorability, from a series of crabbed and tendentious judicial and administrative interpretations of a few stray provisions in the Clean Air Act (CAA)—a statute that long pre-dates the climate change crisis or obsession (take your pick) and, by uniform consensus, is designed to tackle local air pollution, not a global calamity.

What the D.C. Circuit is looking at is a fantastically expensive and convoluted regulatory program that is uniformly acknowledged to produce no discernible climate change benefit whatsoever. Yet that exercise in pointless social mortification—a kind of permanent socio-economic Lent without Easter—threatens to elude any of the ordinary checks and controls: cost-benefit comparisons; judicial arbitrary and capricious review and statutory limitations; congressional or presidential intervention.

Today’s post discusses the trajectory of the climate change train wreck and its principal legal questions. Tomorrow’s post will address the broader institutional questions.

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