Fossil Fuel Crazies Ask Supreme Court To Protect Them From CARB

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The lunatics in the fossil fuel industry — the ones who are destroying the environment in their quest for obscene profits — have banded together to do a full frontal assault on CARB, the California Air Resources Board that for decades has been working to lower emissions from the cars and trucks on California roads. The Environmental Protection Agency was given authority to set tailpipe emissions standards by the Clean Air Act of 1970, which was signed into law by then-president Richard Nixon. The supremacy clause in the US Constitution says that state laws which conflict with federal law are not enforceable, which has led to what is known as the preemption doctrine, which says that in any contest between state and federal law, courts must give federal law priority.

The supremacy clause means that a state may not enact any exhaust emissions standard that is lower than that set by the EPA. But the Clean Air Act gives the EPA the power to issue a waiver to a state that wishes to enact more stringent pollution requirements to protect the health and safety of its citizens, subject to certain procedural requirements. The Clean Air Act also permits other states to adopt the tougher standards if they are exactly the same as those in a state that has been granted a waiver. In fact, 15 states and the District of Columbia have adopted the California standards, but recently there has been some backsliding by states that fear those standards have become a de facto mandate for the sale of battery-electric cars. Recently, Virginia and Connecticut have withdrawn their support for the California standards for precisely that reason.

Fossil Fuel Companies Are People Too

Before we go further, a little background is in order. In 2010, the US Supreme Court decided, in an almost offhanded way, that corporations are “people” within the meaning of the Constitution and therefore have a right to “free speech.” The result of that decision is that politics in America has how devolved into a farce where the winner is often determined by who can raise the most money from donors. Since billionaires have plenty of money, it is not surprising that the candidates they support usually win. Ordinary folks, who don’t have $50 million lying about, are left to like it or lump it when the election tallies are announced.

Citizens United is nothing more than a doctrine pronounced by the Supreme Court — just words on a page — but it has fundamentally changed politics in America. Recently, the Court weighed in on the “major questions” doctrine in decisions that will have similar far-reaching effects. The nub of the discussion is Congressional intent. For decades, Congress has been only too happy to shirk its legislative mandate and let the president or the courts do the heavy lifting for it. It did so by letting the president send the country to war over and over again without a clear legislative mandate to do so. And it did so by enacting policies that left it up to administrative agencies like the EPA to interpret. The assumption since the days of FDR and the New Deal has been that experts who know what they are talking about will make better, more rational policies than some member of Congress whose entire resumé consists of being a college football coach.

The Major Questions Doctrine

According to Wikipedia, there are two versions of the “major questions” doctrine — a narrow version known as the Chevron rule, and a broad version known as the clear statement rule. Under the narrow version, the doctrine says when an agency asserts it has authority to decide “major questions,” courts should independently determine whether the agency’s interpretation of its statutory authority is the most reasonable reading of the statute. Under the broad version, the doctrine says that courts must not interpret statutes as delegating major questions to agencies unless Congress clearly said so. The problem is that Congress rarely says anything clearly and precisely.

Recently, the activist Supreme Court demolished the Chevron rule, saying courts no longer need to give deference to agency decisions. In effect, without saying so directly, the court is telling Congress, “Do your job.” And while there is some rational basis for saying so, the current state of the US Congress is such that getting agreement on the idea that the sun rises in the east is virtually impossible. The knock-on effect of overturning Chevron is that the courts are now the final arbiters of what Congress may or may not have meant when it passed a law. That is a policy that will likely bring much federal rule making to a screeching halt — which is precisely the result the MAGA maniacs have been praying for.

Another recent development at the US Supreme Court is a penchant for reaching down from on high and bringing cases to the court before they have been fully adjudicated by lower courts. In almost all such events, the cases accelerated this way are the ones Leonard Leo, the Federalist Society, and the Heritage Foundation want expedited.  The fossil fuel industry has noticed the way the ground in the legal arena has shifted recently and has decided now is the perfect time to attack the EPA waiver that California has enjoyed for twenty years, on the grounds that Congress never specifically, clearly, and unequivocally gave the agency the power to do so.

Fossil Fuel Companies Run To Supreme Court

Reuters reports that opponents of California’s ambitious targets for electric car adoption to lower greenhouse gas emissions have asked the Supreme Court to pull their chestnuts out of the fire. The companies asking the court to step in include numerous fossil fuel companies, along with corn growers and industry associations that have long opposed strong environmental rules in California. The EPA made that exception because the nation’s most populous state has unique factors like geography and a large number of vehicles that make smog a worse problem than in other states.

In its request for hearing, filed on July 2, Valero Energy, Diamond Alternative Energy, and other plaintiffs said the EPA waiver for the California Advanced Clean Car program for model years 2015 through 2025 enabled the state to “operate as a quasi-federal regulator on global climate change.” The plaintiffs rely on the 2022 ruling in by the Supreme Court in West Virginia v. EPA. That decision invoked the “major questions” doctrine, which requires explicit congressional authorization before regulators can take consequential actions on issues of vast economic, political and societal impact. This request for a Supreme Court review comes from fossil fuel companies, farming groups that contribute to the production of ethanol, trucking firms, and business associations which also are suing in state and federal court to stop California’s rules aimed at slashing greenhouse gas emissions from package delivery trucks and Class 8 trucks. They say the Clean Air Act does not expressly address greenhouse gas emissions from mobile sources such as cars and trucks.

The fossil fuel companies and the other plaintiffs also said California does not meet the legal requirement for “compelling and extraordinary” provisions that would justify a waiver. “Climate change is not an ‘extraordinary’ condition within California” because it is global and not local, they said. California also does not need its own emissions standards to meet global climate change since its efforts would have no discernible effect on those conditions in the state, they added. Notice they did not say climate change doesn’t exist, which is an interesting admission from people who have spent so much money and devoted so much energy to deny that there is such a thing as climate change.

The question of whether California may set greenhouse gas emissions for itself and other states “is undeniably major,” the plaintiffs said, especially since California has asked the EPA for a waiver for its plan to end sales of gasoline-only vehicles by 2035. “The waiver and authority claimed here are the key parts of a coordinated agency strategy to convert the Nation from liquid fuel powered vehicles to electric vehicles,” the filing said, pointing out that doing so would hurt demand for petroleum fuels and biofuels. Other parties to the suit include the American Fuel & Petrochemical Manufacturers, the Kansas Corn Growers Association, and the National Association of Convenience Stores.

Fossil Fuel Companies & Tortured Logic

CleanTechnica readers will immediately spot several flaws in the argument presented by the fossil fuel companies. First, California is not forcing any other state to do anything. Those states that wish to adopt its policies are free to do so or not. States that prefer to poison their citizens with the crud that pours out or the tailpipes of cars and trucks on their roads are also free to do so. Second, this suit is an example of colossal hypocrisy. The mantra of the MAGA extremists today is “states’ rights.” They claim the supremacy clause has been interpreted too broadly and that states have the right to do as they wish within their own borders.

According to them, states have the power to police the national border, deny workers rest and water breaks on hot days, make their own rules regarding how women manage their reproductive health, ban medical care for gay, lesbian, or trans-gender people, control in vitro fertilization, decide what books are used to teach their children, and determine the primary religion practiced within their borders. And yet California has no power to protect its citizens from breathing filthy air?

Hypocrisy is talking out of both sides of your mouth at the same time, saying one thing and doing another, and telling others “Do as I say, not as I do.” And yet, given what we have seen from the solons on the Court — including one serial grifter, one religious fanatic, and one chief justice who allows the American flag to be flown upside down at his home — no one would be surprised if they turn the law into a pretzel to defend those who put them in their exalted positions.

The Supremes recently had to eat crow when they sent a case back to a trial court in Idaho after it became clear they never should have fast-tracked it in the first place, but did so only after being browbeaten by Sam Alito, who has made himself into an avenging angel of the Lord, apparently. Every member of the reactionary supermajority of the Supreme Court claims to despise “activist judges,” and yet they have created the most activist court in history. People often conjure up all sorts of reasons to vote for a certain presidential or congressional candidate, but the truth is, the one and only thing that truly matters in America is who sits on the Supreme Court. Those people are accountable to no one and can serve for 40 years or more. Please vote wisely.


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Steve Hanley

Steve writes about the interface between technology and sustainability from his home in Florida or anywhere else The Force may lead him. He is proud to be "woke" and doesn't really give a damn why the glass broke. He believes passionately in what Socrates said 3000 years ago: "The secret to change is to focus all of your energy not on fighting the old but on building the new." You can follow him on Substack and LinkedIn but not on Fakebook or any social media platforms controlled by narcissistic yahoos.

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