Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.
In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his opening statement, he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology. How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.
Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.
Over the past few years, state attorneys general have brought dozens of lawsuits challenging the Obama Administration’s regulatory initiatives. In addition to leading constitutional challenges to the Affordable Care Act, AGs have sued to block new environmental regulations, implementation of the Dodd-Frank financial law, and a host of other federal policies. For those concerned about the size and scope of federal power, this is a welcome development. Who is better positioned than the states’ top litigators to use law as a bulwark to protect the rights of states against an expanding federal government?
Last week, the Supreme Court granted cert in another important administrative law case—yet again involving EPA; yet again arising over the agency’s riff on the Clean Air Act; yet again a Chevron case. After EME Homer City and Utility Air Regulatory Group (UARG) (yet again a petitioner in this case), it’s the third such case to be heard, decided, or granted in a single calendar year. Maybe it’s just the ebb and flow of cases, but a casual survey of the D.C. Circuit’s environmental docket and the EPA’s ambitious plans to rid the galaxy of any chemical whatever strongly suggests that cases of this sort will continue to loom large.
Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.
As previously discussed here, here, here, and here, Massachusetts v. EPA (2007) created a greenhouse gas exception to every known principle of Administrative Law. It also prompted an improvised EPA climate change regime, which is shaping up as the most convoluted and expensive regulatory regime in history. The Supremes will get another look at this disaster-in-the-making, and not a moment too soon.
Some weeks ago, I discussed and opined on a pending en banc petition in Coalition for Responsible Regulation v. EPA, the sprawling litigation over the EPA’s global warming programs. To recap briefly: in the wake of the Supreme Court’s egregious decision in Massachusetts v. EPA (2007), the EPA first made an “endangerment finding” to the effect that CO2 emissions could be reasonable anticipated to endanger public health and welfare. It then created a row of regulatory dominoes, from the mobile source program at issue in Mass v. EPA to the regulation of stationary sources. That endeavor, the agency helpfully explained, would produce “absurd” consequences, thousands upon thousands of sources, all the way down to hospitals and large apartment buildings, would require permits. To avoid that result, the EPA simply re-wrote the statute and multiplied the numerical permitting threshold by, oh, 400. And, having so “tailored” the program, the agency “timed” it for a gradual phase-in.
In a post this past February, I reported on the EPA’s regulation of greenhouse gases (GHGs) and the D.C. Circuit’s review thereof in the wake of Massachusetts v. EPA (2007). The appellate court has since upheld the EPA’s regulations in a per curiam opinion, issued by a panel that, amazingly, includes Judge Sentelle (Coalition for Responsible Regulation v. EPA, or “CRR”). The petitioners have asked for rehearing and/or rehearing en banc; the government has submitted a perfunctory reply. The petition will fail: the D.C. Circuit hardly ever convenes en banc, least of all on a per curiam panel opinion. But there is a decent chance that the petitioners may get a dissent from the denial, and therewith a shot at Supreme Court review. That may be the last chance to avert a regulatory train wreck of epic proportions.