Litigation is a poor way to handle policy disputes. It takes forever, the appeals never end, and the results are often a mishmash that satisfy none of the litigants. Nevertheless, sometimes going to court is the only option available when everything else fails. We have followed the long and tortured history of how the Environmental Protection Agency, under first Scott Pruitt and later Andrew Wheeler, has tried every trick in the book to invalidate the exhaust emissions standards for cars and light trucks put in place by Barack Obama. The new rules have finally been made official. Now a coalition of states and cities has filed suit in federal court to block those rules from taking effect.
The legal action is spearheaded by California, but includes the states of Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington as well at the District of Columbia and the cities of Los Angeles, New York, San Francisco, and Denver.
One of the things the alleged president and his co-conspirators are upset about is that the Obama rule would lead to a decrease in sales of gasoline and diesel fuel — anathema to to their friends in the fossil fuel industry who have contributed so generously to the #Fake Republican party. They can’t say that, of course, because that would be admitting to a host of crimes, so they dress it up in flowery language that attempts to put lipstick on their prize pig. They go on at length about how diligently they have reviewed all the available scholarly literature and reports, taken into consideration all 750,000 comments to the proposed rule, and worked strenuously to craft a new rule that dots every i and crosses every t.
It’s all a grand charade designed to keep the courts from second guessing what they have done in their drive to confer an unfair advantage on their oil-soaked friends. What it comes down to is the EPA — legally charged with protecting the environment — has drafted new rules that will damage the environment and increase the amount of pollutants flowing from the tailpipes of millions of new cars during their entire useful life so Americans can suffer increased levels of pulmonary and cardiovascular disease and live shorter lives. And all to reward campaign donors.
The justification is that fossil fuels are the bedrock of the American economic system (not to mention the biggest source of campaign cash to the GOP) and should be protected whatever their faults. But that same argument could be used to say asbestos did more good than harm or that DDT and Freon weren’t so bad. In other words, you have to be a total industry stooge to stand up with a straight face and tell people you are protecting the environment by allowing it to become more polluted. Think about that for a minute.
In an announcement regard the new lawsuit, California Attorney General Xavier Becerra said, “The underpinnings for the Trump Administration’s so-called ‘SAFE’ rule are crumbling before the rule even hits the road. The Administration claims their new rule will save money and lives, but previously undisclosed internal documents reveal how far from the truth that is.”
What undisclosed internal documents? The Washington Post has that story. It reports open warfare broke out in March between career EPA staffers and the ideologues Tramp has installed to do the bidding of the fossil fuel companies. The staffers, of course, are all agents of the Deep State sworn to wrecking democracy, according to the lunatics currently running the American government.
Delaware Senator Thomas Carper, the ranking Democrat on the Senate Environment and Public Works committee, has come into possession of e-mails between EPA staffers and their counterparts at the Department of Transportation, which is headed by Elaine Chao, wife of Despicable Mitch McConnell. Those e-mails were not included in the public record — a fatal error, Carper says.
“In the rush to finalize this rule — and in the middle of a pandemic, no less — they broke just about every rule in the book,” Carper says. “The result is a policy that fails to protect public health, fails to save money, fails to result in safer vehicles and will, ultimately and undoubtedly, fail in court.”
He says DOT, in its haste to please its political bosses, ran roughshod over the professionals at EPA and jammed the new policy down their throats. Would anyone in the Tramp maladministration do anything so brazen? Oh, you betcha. Carper has called on the EPA inspector general to investigate, but it will only be a matter of time before Tramp has a tantrum and fires the IG so he can replace him with someone who is subservient to his will, thereby vitiating the purpose of having an IG in the first place.
The preamble to the government’s proposed new emissions regulations back in February said this “action will result in reductions in climate change-related impacts and most air pollutants compared to the absence of regulation.” EPA staffers wrote in the margins of the document, “This is not correct. The action revising the [greenhouse gas] standards will result in increased climate impacts and air pollution emissions compared to the existing standards.” Those comments do not appear anywhere in the public record.
“The Trump administration’s rollback of the Clean Car Standards will hurt Americans, increase harmful pollution, cause more than 18,000 premature deaths, and cost consumers billions of dollars at the gas pump,” Peter Zalzal, lead attorney at the Environmental Defense Fund, tells the New York Times. “The rollback is deeply and fundamentally flawed, it is inconsistent with the agencies’ legal duty to reduce harmful pollution and conserve fuel, and we look forward to vigorously challenging it in court.” With any luck, Trump and his swamp things will be long gone before any final court ruling is announced.
9th Circuit Says No To Fossil Fuel Companies
A suit brought by five California counties and three cities seeks to hold fossil fuel companies Chevron, Exxon, BP, ConocoPhillips, and Shell liable for business practices that promoted climate change. The plaintiffs want the companies to pay for the infrastructure that will be needed to fend off rising sea levels and other impacts from a warming planet.
Much of the law has less to do with the law itself and more to do with who the decision maker is. State judges and state juries tend to be sympathetic to legal complaints brought by cities and counties within the state. Federal judges and federal juries are less inclined to do so. And keep in mind, the US Supreme Court, the final arbiter of all that is holy from a legal standpoint in the United States, has a majority made up of members of the Federalist Society, the Koch Brothers-supported organization that has been spreading lies about the Deep State and the dangers of an expansive federal government for decades. Those once radical ideas are now mainstream in the Tramp maladministration.
So it was no surprise when the defendants in the suits brought in state courts in California sought to yank them away from state judges and get them into federal court. All litigants want to tip the legal playing field in their favor as much as possible. This week, the 9th Circuit Court of Appeals ruled against the defendants’ effort to remove the suits to federal court and sent the litigation back to the state courts. It also directed a federal trial court to review its decision to dismiss similar litigation. In that ruling, Judge William Alsup said that while the issues raised were substantial and significant, they were outside the scope of things the courts have the power to address in judicial proceedings.
“Today’s Ninth Circuit decisions represent a very big win for the California local governments bringing these climate change-related lawsuits and, correspondingly, a major loss for the carbon-based energy industry,” Richard Frank, director of the California Environmental Law & Policy Center at the University of California Davis School of Law, tells Inside Climate News. “The carbon-based energy defendants should be worried about today’s decisions, and what they portend for the future resolution of these cases.”
It may be too soon for environmentalists to break out the champagne, warns Pat Parenteau, a professor of environmental law at the Vermont Law School. “The question presented was very narrow and technical, so it may not say much about how conservative judges might rule on the substantive issue or whether the oil companies should actually be held liable.”
And so the legal skirmishes continue while the world burns. In the end, courts really should not be making grand policy decisions. But when the executive and legislative branches fail to carry out their sworn duties, courts may be the only avenue of redress available to mere mortals who don’t have billions of dollars available to bankroll PACs and an army of lobbyists. Perhaps the limits on judicial power should cause us to re-examine the constitutional system of government under which the US government operates — or fails to operate, as the case may be.