Roberts Court Upholds but Limits EPA's Authority to Regulate Greenhouse Gases

The conservative wing of the Roberts Court today ruled that the EPA cannot regulate greenhouse gases in certain contexts — but acknowledged that the agency can continue to do so in others. Despite the negative part of the ruling, the EPA retains its general authority to regulate greenhouse gases, a result that the EPA calls "a good day for all supporters of clean air and public health." Environmental organizations such as the Natural Resources Defense Council and Earthjustice issued generally positive statements in response to the ruling.

In 2007, the Supreme Court ruled that greenhouse gases count as a pollutant under the Clean Air Act. While that case involved the regulation of cars and trucks, today's case involved two sections of the Clean Air act relating to "stationary sources," like power plants.

In the now-predictable 5-4 lineup, the Justices sided with polluters in ruling that the Clean Air Act prohibits certain permitting requirements for facilities that emit large amounts of greenhouse gases. Under the Clean Air Act, facilities emitting pollutants above a certain level (250 tons per year) are subject to EPA permitting requirements. Congress set that level with traditional pollutants in mind, but since greenhouse gases are emitted in far greater volumes than other pollutants, millions of industrial, commercial, and even residential sources exceed the statutory threshold. To avoid tremendous costs to both industry and state permitting authorities, the EPA chose to initially subject only the largest sources of emissions to mandatory greenhouse gas permitting – those emitting far, far more than 250 tons per year.

All the Justices agreed that when Congress passed the Clean Air Act, it wanted permitting requirements only for the largest polluters. So how do you reconcile the Act's requirements for a permitting program for places emitting "any air pollutant" over 250 tons per year, with the fact that including greenhouse gases over that amount leads to results that Congress didn't want?

As Justice Breyer stated in his dissent, all the Justices agreed that the statute has to be interpreted as having an implicit exception, or else it doesn't make sense. But they disagreed sharply over what that implicit exception is. The conservative majority used this as an opportunity to poke a hole in the definition of "air pollutant" in the specific sections of the Act at issue in this case, so they basically apply to "any air pollutant except greenhouse gases." This would allow the largest contributors to greenhouse gas pollution escape reasonable regulations under the sections of the Clean Air Act at issue in this case.

In contrast, the dissent would attach the implied exception to the types of sites that are subject to the mandatory permitting requirements. That would let the EPA adopt regulations affecting only the main sources of the problem, exactly as Congress intended. And it would prevent an interpretation of the Clean Air Act where greenhouse gases count as pollutants in one section but not another. The dissent's approach lets the EPA respond flexibly to new information and advances in science since the Clean Air Act was adopted, just as Congress intended.

Yet, as noted above, this was not the only part of today's opinion. Importantly, the Court also upheld EPA regulatory authority in another context, with only Justices Thomas and Alito dissenting. If a facility is already subject to EPA regulations due to more traditional air pollutants, then the EPA can require it to use the best available technology to control its greenhouse gas emissions, as well. During oral arguments, the Obama Administration said that this covers 83% of the greenhouse gas emissions that come from stationary sources in the United States.

Justices Alito and Thomas wrote that the greenhouse gases aren't covered by any part of the Clean Air Act, period. Fortunately, their position did not carry the day. And the day ends with EPA's authority mostly intact.

PFAW Foundation

People For the American Way Action Fund Endorses Young Progressive Candidates in Michigan

People For the American Way Action Fund today announced its endorsements of a slate of young progressive candidates running for the Michigan State Legislature. The endorsees include a diverse mix of 35-and-younger candidates running for the Michigan state House of Representatives and state Senate, representing a new generation of progressive leaders who will put Michigan’s legislature back-on-track towards a common sense, inclusive, accountable public policy agenda for the state’s future. Their leadership represents a progressive vision that will benefit all Michiganders as they fight for social, economic, environmental justice and equality for all.

The endorsements are part of People For the American Way Action Fund’s Young Elected Progressives (YEP) program. YEP evaluates and endorses young progressive candidates age 35-and-younger in their bids for elected office around the U.S. at all levels.

People For the American Way Action Fund is proud to endorse these Michigan YEP candidates for 2014:

Stephanie Chang – MI House District 6

Running for Michigan’s House of Representatives District 6, Stephanie Chang is a Michigander whose dedication to the community has benefited many. Chang has worked around the state advocating for Affirmative Action, serving as a mentor for Detroit Asian Youth Project, and promoting a fair justice system. Chang’s knowledge and breadth of experience in Michigan make her an important leader for the state as she fights for social, economic, and environmental justice. Visit Stephanie’s page for more details.

Jon Hoadley – MI House District 60

Jon Hoadley is the clear choice to represent Michigan’s 60th District in the state House of Representatives. Hoadley, a small business owner and member of several advocacy organizations in Kalamazoo, is deeply ingrained and in tune with the needs of his community, which makes him the ideal representative. He has already worked to better Kalamazoo advocating for full LGBTQ equality, creating strong and sustainable public schools, and protecting the environment. Visit Jon’s page for more details.

David Knezek – MI Senate District 5

David Knezek is running for Michigan state Senate’s 5th District and has proven that he is the ideal candidate for the position. Knezek is a true leader, having been promoted to the rank of Sergeant during his time in the U.S. Marine Corps. At the University of Michigan-Dearborn, he was elected Student Government President, and in his senior year of college he was elected to be a Michigan state representative. Knezek has proven that he will advocate for his community and improve education, public safety, and job opportunities for Michigan citizens. Visit David’s page for more details.

Kristy Pagan – MI House District 21

Born and bred in Michigan, Kristy Pagan is the ideal candidate for the 21st District of Michigan’s state House of Representatives. She has worked in Washington, D.C. as a legislative aide and a national grassroots organizer. Her determination to serve coupled with her knowledge of and dedication to Michigan will serve the state well. Pagan is a true progressive, and has both the resolve and the passion to reform Michigan’s educational system, advocate for women and children, and improve job growth. Visit Kristy's page for more details.

Rebecca Thompson – MI District 1

Rebecca Thompson is running for election to the 1st District of the Michigan state House of Representatives. Thompson was born and raised in Detroit, and overcame experiences with poverty and homelessness to become a leader in the community. She has worked tirelessly to better Detroit for everyone, using her own experiences to positively impact those around her. Thompson is passionate about affordable education, improving safety, protecting women’s rights, and advocating for her community. Visit Rebecca's page for more details.

Robert Wittenberg – MI House District 27
Robert Wittenberg is running to represent District 27 in the Michigan state House of Representatives. After being inspired by his parents’ and brothers’ work, he is determined to follow in their footsteps and serve his community. As a public servant, he advocates for full equality for the LGBTQ community, increased public transportation, and access to healthcare for all. Visit Robert's page for more details.


Will the Roberts Court Choke Off Greenhouse Gas Regulations?

Opponents of greenhouse gas regulation are likely cheering the Supreme Court's decision this morning to hear challenges to the EPA's legal authority to regulate certain greenhouse gas emissions.

The EPA concluded in 2009 that carbon dioxide and other greenhouse gases are pollutants dangerous to human health and welfare. Under a previous Supreme Court ruling, this "endangerment finding" meant that the Clean Air Act gives the EPA the power to regulate greenhouse gas emissions from new motor vehicles. The next year, the agency adopted a "Tailpipe Rule" for new cars and light trucks. Then, based on the agency's longstanding interpretation of the Clean Air Act, it also concluded that the Tailpipe Rule automatically triggered regulation of "stationary sources" of greenhouse gases like factories and power plants.

Industry groups and several states (with Virginia's Ken Cuccinelli acting as a key ringleader) challenged the EPA's rules. Cuccinelli, you may remember, abused his position as Attorney General to engage in a witch hunt designed to intimidate climate change scientists. In this case, he has attacked the EPA's underlying "endangerment finding," citing the manufactured right-wing "scandal" of "Climategate." Fortunately, the Supreme Court will not be considering this aspect of the appeals, which might have given Cuccinelli's claims some patina of legitimacy.

However, the Justices will be hearing challenges to the EPA's conclusion that it has the power under the Clean Air Act to regulate greenhouse gas emissions from stationary sources. The EPA's legal conclusions were upheld by a unanimous panel of the D.C. Circuit in a per curiam decision (per curiam is usually shorthand for "no duh") that included conservative Judge David Sentelle. According to the court, the EPA's interpretation of the Clean Air Act regarding stationary sources was "unambiguously correct" and "compelled by the statute."

We will have to wait until 2014 for oral arguments and a final decision. Then we will find out whether the Roberts Court will hand another victory to corporate interests.

PFAW Foundation

On Every Issue, Vote the Court

Add the Washington Post's Jonathan Bernstein to the large list of pundits recognizing the critical importance of the Supreme Court as an election issue. He writes:

But as important as [the survival of the Affordable Care Act] is, I don't think it's the No. 1 thing at stake.

That thing is the Supreme Court.

It's likely that the next president will replace at least one justice. If Mitt Romney wins next month and his party benefits from an improved economy by 2016 (not a certain scenario, but one that wouldn't be surprising), then we're talking about eight years and a very good chance of putting four justices on the bench.

Mitt Romney has promised to fill the Supreme Court with extremists like Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. These four have, time and again, bent the law and confounded logic in order to benefit big corporations. In contrast, President Obama has a track record of nominating thoughtful and moderate Justices like Sonya Sotomayor and Elena Kagan.

Bernstein writes:

On every issue that's at stake in the election, whether it's the economy or executive power in national security or climate or yes, health care, a court in which Chief Justice John Roberts is the median voter would be enormously different from one in which, say, Elena Kagan is in the middle.

In an America transformed by a Romney Court, power would flow to the already-powerful, and the middle class would be even more vulnerable and at risk.


Log Cabin Republicans Endorse Mitt Romney

To no one's surprise, the Log Cabin Republicans have endorsed Mitt Romney. The endorsement is as pitiful as it is predictable.

Romney supports a constitutional amendment prohibiting gays and lesbians from marrying. Romney opposed the end of Don't Ask Don't Tell. He signed the National Organization for Marriage's pledge to defend DOMA, put Washington DC's marriage equality law up to a popular vote, and establish a presidential commission to "investigate harassment of traditional marriage supporters." Romney has promised to nominate Supreme Court Justices like Antonin Scalia and Clarence Thomas, who dissented in the two major gay rights decisions of the past 20 years. And his main advisor on judicial nominations is the infamous Robert Bork, who has compared gay rights to child molestation.

But it's not just LGBT people who should be worried about the prospect of a Romney Court.

The Supreme Court justices Romney promises to nominate would ensure that our nation's highest court continues to routinely bend the law and twist logic in order to favor corporate interests. They would block environmental laws that restrain large corporations from poisoning our air and water. They would severely weaken and in some cases eliminate consumers' right to sue manufacturers of dangerous products. They would make it increasingly difficult for victims of illegal employment discrimination to have their day in court. And, of course, they would continue to game our nation's electoral system to make sure that corporate interests drown out the speech of ordinary Americans, while upholding obstacles designed to prevent those same ordinary Americans from being able to exercise their right to vote.

That's an agenda that's devastating for all Americans, not just gays and lesbians.


Corporate Allies at the DC Circuit

As a great reminder of what's at stake this Election Day, Washington Post columnist Steven Pearlstein wrote a piece this weekend excoriating the far-right judges who have taken over the DC Circuit Court. Nominated by George W. Bush, they have behaved on the bench exactly as predicted by those who opposed them, including People For the American Way: They are using their judicial positions to impose their far-right ideological agenda onto the nation, bending the law beyond recognition in order to empower already-powerful corporations and striking down reasonable regulations through which the American people seek to hold businesses accountable.

For example, Pearlstein describes a poorly reasoned decision from August in which Bush judges granted the wishes of major corporate polluters and struck down the EPA's rules on air pollution that crosses state lines:

... 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture.

You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.

You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

Pearlstein also describes how this same court has struck down regulations to let shareholders nominate directors of the companies they own (although they were ordered by Congress), and to include graphic warnings on cigarette packages (because Bush judges disagreed with FDA experts on whether they would be useful).

The DC Circuit is perhaps the nation's second most powerful court, behind only the Supreme Court. Yet because only a handful of cases ever reach the Supreme Court, it is usually the DC Circuit that gets the last word. So when large corporations want to cripple the American people's ability to enact reasonable regulations to impose limits on the power of corporations, they look to the current DC Circuit for allies.

That is why Republicans filibustered President Obama's nomination of Caitlin Halligan, a highly qualified jurist who would not use the court as an ideological weapon. And that is why they are licking their chops at the possibility that Mitt Romney might have a chance to stack the DC Circuit will even more right-wing extremists, just as he would do with the Supreme Court.


Bush Judges Again Show Why the DC Circuit Matters

Last week, the U.S. Court of Appeals for the DC Circuit Court issued two sharply divided opinions, both authored by ideological George W. Bush nominees, that show just how important it is to fill the DC Circuit's three empty judgeships with jurists who will put the law over political ideology.

Last Friday, a three-judge panel of the DC Circuit Court issued a divided 2-1 opinion striking down FDA rules requiring graphic warning images on cigarette packages. The majority opinion was written by one of George W. Bush's most notorious nominees, Janice Rogers Brown, who made headlines this spring when she wrote a widely condemned concurring opinion defending the ideology of the discredited Lochner era. The FDA had ordered cigarette packages to complement their textual health warnings with graphic images showing the actual consequences of using the product as intended. Judge Brown jumped through all sorts of hoops to strike the images down as violating Big Tobacco's First Amendment rights. For instance, she dismisses the federal government's stated interest in communicating factually accurate health information to consumers, saying that isn't really its goal. That lets her ignore the obvious fact that the images clearly accomplish that goal.

Two other Bush nominees – Brett Kavanaugh and Thomas Griffith – are responsible for a 2-1 anti-environmental decision earlier in the week. In that case, they granted the wishes of major corporate polluters and struck down the EPA's rules on air pollution that crosses state lines. As the Pittsburgh Post-Gazette noted:

The court ruling, decided by a 2-1 majority, was as surprising as it was dismaying. In her vigorous, even angry, dissent, Judge Judith W. Rogers showed why the decision came as a shock to some:

"To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act ... and this court's settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did.

"The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress's vision of cooperative federalism between the States and the federal government in implementing the [Clean Air Act] based on the court's own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court's precedent on which the [EPA] was entitled to rely in developing the Transport Rule ... ."

The Virginian-Pilot was equally disgusted:

To provide some idea of how poorly reasoned the resulting decision was, the judges on the D.C. panel also bought the argument that the EPA should have given states an opportunity to come up with their own plans for downstream pollution.

That's a laughable misunderstanding both of the nature of pollution and of interstate negotiations. Until the EPA stepped in forcefully and under a court's order, efforts to manage water pollution that flows into the Chesapeake Bay floundered for nearly three decades, the result of obstruction and reluctance by a handful of states. The EPA air pollution rules covered more than half the country.

Of the 11 judgeships on the DC Circuit, three are currently empty. Last year, Senate Republicans – eager for more judges like Brown, Kavanaugh, and Griffith – filibustered President Obama's nomination of Caitlin Halligan to the seat once held by now-Chief Justice John Roberts. He renominated her this year, but Republicans have not shown any lessening of their obstruction. President Obama has also nominated Sri Srinivasan to one of the other DC Circuit vacancies.

Decisions like those we saw last week show how important it is to have highly qualified, non-ideological judges on the DC Circuit.


The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.

Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.

Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.

You can read the full report here.


4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.


Resurrecting Lochner

Right-wing columnist George Will has a column this morning filled with deception and misdirection on the Supreme Court's infamous Lochner decision. Lochner was the decision in which arch-conservative Supreme Court Justices struck down New York's law setting a maximum work week for bakers (six days a week, ten hours a day).

Because of their much greater economic power, employers in New York had been able to compel employees to agree to terrible working conditions. The Lochner Court, seeking a way to impose its own economic and social policies, decided that the law violated the individual baker's constitutional right to freely contract his labor. As manipulated by these Justices, the Constitution enshrined the "right" of the powerless individual to remain powerless in the face of oppression.

Lochner has come to represent the far-right Court's use of the Constitution to impose its own preferred economic and policy goals. The Lochner era saw the Court strike down laws limiting child labor, setting a minimum wage and protecting union rights, all in the name of the Constitution.

Such wild judicial activism has been thoroughly discredited since the 1930s. But as the Roberts Court increasingly chooses to legislate from the bench to protect Big Business, forces of the Right are going so far as to seek to resurrect Lochner. Will writes that

Since the New Deal, courts have stopped defending liberty of contract and other unenumerated rights grounded in America's natural rights tradition. These are referred to by the Ninth Amendment, which explicitly protects unenumerated rights "retained by the people," and by the "privileges or immunities" and "liberty" cited in the 14th Amendment.

Reading that, you would never know that it is conservatives and not liberals who for decades have tossed the Ninth and Fourteenth Amendments in the trash heap by claiming that if a right is not specifically enumerated in the Constitution, then it does not exist. Conservatives have heaped scorn on the idea that the Constitution protects the right to privacy. How many times have they said that the word "abortion" doesn't appear in the Constitution, as if that was at all relevant?

And the idea that the Supreme Court has "stopped defending the liberty of contract" is absurd. What it has done is stop misusing the liberty of contract to strike down consumer and employee protections.

During the First Gilded Age of the late 18th and early 19th centuries, American society had evolved significantly from our nation's founding. With the unprecedented consolidation of wealth, large corporations and their owners and managers dwarfed individuals in power in a way that our nation had never seen before. In addition, we were changing from an agricultural nation of independent farmers and small merchants into an industrial nation where millions of people began to rely on wage labor with vastly more powerful employers for survival.

Fortunately, the Constitution protects individuals from enthrallment to the powerful, whether it is a government or a private actor holding the whip. In the latter case, it empowers Americans to consolidate our power – through government – to accomplish that which individuals cannot do, including countering the otherwise unbridled power that economic forces have granted to some.

The corporate-funded Tea Party movement is perhaps the most visible effort to discredit the idea that Americans have the constitutional right to prevent giant corporations from oppressing workers, destroying the environment, and endangering consumers at will. The Constitution is not a tool to be wielded against Americans in the service of a developing and growing plutocracy; it's a shield to ensure all Americans have equal rights and protections under the law.