James Joyner Has a Bad Day

It’s a bad day for the national conversation when conservatives like James Joyner and Conor Friedersdorf start parroting Tea Party talking points.

James Joyner is one of the few conservatives who actually try to come up with intellectually coherent policy positions, and he often does.  So maybe we should give him a pass when he blows it.

But wow, is this one a doozy. 

The EPA has decided to begin to issue greenhouse gas regulations, as it is entitled to do both by the plain meaning of the Clean Air Act and by Supreme Court precedent directly on point.

Yet somehow Joyner insists that this is ruling by “executive fiat,” suggesting that this is “unilateral” action outside constitutional scope.

Maybe we should go over this again, very slowly:

1)  The Clean Air Act, a highly detailed statute, explicitly gives EPA the authority to write regulations to control greenhouse gas emissions, and in fact mandates it if the agency determines that such emissions endanger human health (which on any fair reading of the science, it must).

2)  Taking its direction from Congress, EPA has decided to follow the statute.

3) When the Bush EPA said that it lacked this authority, the Supreme Court told it that it did.

In what universe does this equal “unilateral action” or “executive fiat”?  The AP headline writer that suggested it should be given a good talking to. 

And Conor Friedersdorf (subbing for Sullivan), who approvingly linked to the Joyner piece, should take a basic civics class.  Friedersdorf writes: “Regardless of how Congress acts, I’d prefer if for that body to determine how the US responds to the real phenomenon of climate change caused by greenhouse gasses [sic].”  Uh, Conor: they have.  It’s called the Clean Air Act.

There are lots of places to worry about unilateral executive action.  This isn’t even close to one of them.

Irony alert: in this case, conservatives like Friedersdorf and Joyner claim to want more legislative action.  In the case of health care reform, most conservatives complained about a “1,000 page bill.”  Funny how that works.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

31 thoughts on “James Joyner Has a Bad Day”

  1. Seems the folks in Conservativeland are devolving from denying common sense and decency to denying science to denying the law. All of these things are just so inconvienient when trying to justify the unjustifiable.

    The way they are going soon we will hear them denying gravity so it can be claimed we don't need roads since we should all just float to where we want to go. And of course all those savings should be handed to the wealthy because… well it's just the right thing to do.

  2. I'm pretty sure the argument here is that the EPA was not given authority to regulate any chemical which could, through some Rube Goldberg sequence of events, cause some human harm. (And, no, global warming isn't 'basic physics'.) Otherwise the EPA would have authority to regulate, well, EVERYTHING. Rather, the EPA was given authority to regulate chemicals which might directly harm somebody. You know, "toxic" chemicals.

    CO2 is, of course, capable of causing poisoning. So is H2O, N2, every freaking chemical in existence, at a high enough concentration. But it's nowhere near the poisonous concentration. And no plausible scenario for it getting there exists.

    So, by an honest reading of it's enabling statutes, the EPA is no more entitled to regulate CO2 emissions than it's entitled to regulate the amount of water coming out of your roof's downspouts just because people can drown.

    Just because a clever sophist can construct an argument for why meter maids have the authority to regulate how long you spend on the couch, ("Parking" your butt…) and the courts are systematically packed with people who are inclined to accept any excuse for expansions of federal power, doesn't mean that every regulatory agency was actually granted authority over everything in existence.

  3. Brett and Thomas never address Jonathan's point that the Supreme Court has already ruled on the question and found that the EPA has not just the authority but the legislative duty to act if the science shows that some emissions have the effect of harming health, even if the effect is indirect (e.g., via climate change) rather than directly via toxicity. Of course the Court might have been wrong, but its ruling is authoritative. To call an administrative action that implements a statute as the Court has interpreted it "lawless" is simply an abuse of language.

  4. No, I did in fact address that: "and the courts are systematically packed with people who are inclined to accept any excuse for expansions of federal power".

    I think it's sophistry, but the Justices of the Supreme court are, of course, lawyers, which is to say, professional sophists, and they're professional sophists chosen by federal office holders who didn't want the constitution getting in their way.

    It's lawless, AND upheld by the courts.

  5. I'm not going to defend Brett, but I will defend Conor. I agree with him that it is preferable that Congress legislates this point, even though the EPA has the power to act. The administrative state sits uneasily on the Constitution. I don't mind the argument from necessity, and can live with the administrative state. But right now we have a system of governance where Congress gives essentially blank checks to administrators and exercises oversight by veiled threat through committee hearing. It kinda works, but isn't very transparent, or consistent with the structure of the Constitution.

    In the end, Conor is saying that our system of government works poorly. He is correct. I'd rather see a parliamentary system, myself. Or maybe allow the neo-Confederacy to secede, on condition that they do not reimpose slavery.

    OTOH, Congress is paralyzed and we're choking on exhaust fumes and major structural change is not in the cards. What's a republic gonna do?

  6. "I agree with him that it is preferable that Congress legislates this point, even though the EPA has the power to act."

    The Associated Press apparently has this same view, as their wire story on the 24th by Merrill Hartson stated in the lede that although the Obama admin is "[s]tymied in Congress", it is "moving unilaterally to clamp down on power plant and oil refinery greenhouse emissions, announcing plans for developing new standards over the next year."

    I was surprised at the wording and wondering why the AP is trying to foment dissent here. My default is that Exxon or Koch is paying them to take this position.

  7. Regardless of the merits, the public is getting pretty fed up with government by regulation. Warning to "progressives" – this ongoing strategy is building, rather than defusing, disgust with the current administration. I expected Obama to recover by November 2012 as most incumbents do, but overwraught regulation is fueling conservative and independent momentum toward replacing him then, and probably putting R's in full control (since Senate control is all but given in 2012). Then your gains from 2008-12 can be largely reversed.

    For now, I would settle for a one page bill tying the EPA's hands, but the Senate would probably not get it done.

  8. Shorter Brett Bellmore: "When the Democratic Party holds the majority on the Supreme Court my incoherent right wing policy preferences will become obvious to them."

    Wait a minute, does that make sense? Of course not! If it did, it wouldn't be Brett.

    As an aside, I really do enjoy redwave's veiled threats. What did Alfred Kahn do? Along with beer and trucking deregulation, by redwave's preferences his dream president was Jimmy Carter. Right redwave? Good man!

  9. So, according to Thomas and Brett, the Clear Air Act authorized the EPA to regulate only the dangerous emissions of those substances known to be dangerous in 1970?

  10. No, it authorized regulation of toxic emissions, not substances which were "dangerous" only indirectly. The water coming out of your gutter might raise the level in a pond, making drowning more likely, but that didn't make water a "dangerous" substance, with the runoff from your roof a substance the EPA must regulate.

  11. Two clarifications here:

    1) Although Congress passed the Clean Air Act originally in 1970, it was very substantially amended in both 1977 and 1990. The 1990 amendments explicitly mention carbon dioxide as a potential pollutant.

    2) Just to make Thomas' point explicit:

    Statute: "No vehicles are permitted in the park."

    Thomas (jumping up and down): There's a kid on a tricycle in the park! Arrest him! Arrest him!

    Police office/park ranger (confused): Huh? That's not what the statute means; that's an absurd reading.

    Thomas: Lawlessness! Socialism! Nazism! AAAGH!!!!!

  12. Jonathan, that's a horrible misrepresentation of the argument. It's more like this:

    Statute: No vehicles are permitted in the park.

    Liberals (jumping up and down) There's a kid on a tricyle in the park! Arrest him!

    Supreme Court: Ok.

    Liberals: The penalty for the offense is suspension of his driver's license, which is obviously an absurd penalty in this case–he doesn't even have a driver's license. We'd like to ignore the statute's requiremments and do something else.

    Thomas: Lawless.

    Look, if CO2 is an air pollutant within the statute, then it's an air pollutant within the statute, and to say that it's inclusion would lead to absurd results is a reason not to find it within the statute, not to read it as an agent and disregard–lawlessly–the statute's requirements. And yet that's the position that Jonathan and Mark and the EPA are taking. (Mark's confusion is based on his ignorance–he apparently doesn't realize that the EPA has gutted the statutory requirements in this case. That gutting is lawless, so long as the original decision is in place.)

  13. My mistake — the "carbon dioxide" sections are in the nonregulatory portion of the Act. The Act DOES explicitly say that "air pollutants" are agents that among other things affect "climate." Given the discretion that Congress gave to EPA, it's hard to see how CO2 wouldn't be included in that.

  14. Thomas, that may be a legitimate argument, but it has nothing to do with "executive fiats" or separation of powers problems, or anything else. It's just a garden-variety question about the amount of discretion in the statute — and of course will be litigated. No constitutional problem, no creeping tyranny, or anything else. Yawn.

    And by the way, the approach to statutory interpretation that you say "liberals" have adopted is routinely adopted by federal judges all over the country, including such well-known Marxists as Frank Easterbrook and Richard Posner. Yawn again.

  15. Easterbrook and Posner have radically different positions on statutory interpretation, but I think it's fair to say that neither of them would make the mistake of arguing that it's obvious that CO2 is an air pollutant, and that once we adopt that position we must ignore other aspects of the statute to avoid absurd results.

    I didn't say anything about separation of powers, or tyranny or anything else. My position is that CO2 is clearly not covered by the Clean Air Act, and that because it's not covered by the act we need the legislature to decide how it wants to address the issue. To do what the EPA and its allies have done–misread the statute to include C02, and then rewrite the statute to avoid what follows from that determination–is simply lawless. When the government acts lawlessly, apparently you just yawn.

  16. That's an inaccurate characterization of the EPA, Posner, Easterbrook, and your own position in one blog comment! Pretty good. The Clean Air Act gives the administrator authority to classify air pollutants based upon science: it doesn't attempt to foreclose the issue because scientific understanding changes, unlike conservative polemics. The Bush Administration's reading of the statute was simply wrong, and when presented with the scientific evidence, it quite literally refused to open the e-mail.

    "When the government acts lawlessly, apparently you just yawn." No, when the government takes a position, I look at the relevant precedents, and there are legions of them that say that when applying a statute literally would yield absurd results, then it is permissible for either a court or an administrative agency to read it to produce a reasonable result. Both Posner and Easterbrook have repeatedly used this canon — as well as just about every other judge in the country. Now, we can argue about whether the canon is appropriately applied here, but to say, as you did, that "lawlessness doesn't begin to describe it" is acting like chicken little. EPA has adopted a tailoring rule. The Chamber will challenge it. It might win on the challenge. That's the way the system works. Yawn. Yawn. Yawn.

  17. I confess finding relatively little interest in discussing administrative law with people whose ideology leads them to believe there should *be* no administrative agencies.

  18. One argument from the Right is that CO2 is not a pollutant; that it's a natural and needed matter. That it's good,; that plants require it to grow.

    None of these notions have any concept of Balance; the ratios and optimum levels of the elements of our World. All of these arguments and views are based on the idea of the short contemporary environment is the norm; even in geologic time spans.

    Water is a normal and needed element. When we get too much at the same time and place, we call it a flood. All that normal and needed stuff is ruining the place, and we declare (local) emergencies.

    Same with CO2, except it ain't local.

  19. Let's just be clear about what you think the right answer is here: The Bush administration refused to classify CO2 as an air pollutant, and that refusal was challenged. Under settled principles of administrative law, the decision was entitled to Chevron deference, and so for you (and the Supreme Court) to conclude that the Bush administration's refusal (which apparently causes more than a yawning reaction from you, even all these years later) was wrong, it must find that the Bush administration's reading was unreasonable, not just not the best reading. The Bush administration's reading did not lead to absurd results, while the contrary reading you insist on does lead to absurd results. Your solution is to adopt the reading which leads to absurd results, and then gut a separate section of the statute to avoid the absurd results. You want to have your cake and eat it, and good for you, but it's too late for that. It seems perfectly appropriate to call that for what it is, which is lawless.

    Posner and Easterbrook have a noted disagreement on the role of "absurd" results in statutory interpretation. See United States v Marshall, which is likely in one or more of the textbooks used at your school. I doubt very much that Easterbrook has "repeatedly" used the canon against absurd results. In fact, he's addressed at length his views on the canon and it's fair to say that he believes it has only a very narrow reach: "Today the anti-absurdity canon is linguistic rather than substantive. It deals with texts that don’t scan as written and thus need repair work, rather than with statutes that seem poor fits for the task at hand.In other words, the modern decisions draw a line between poor exposition and

    benighted substantive choice; the latter is left alone, because what judges deem a “correction” or “fix” is from another perspective a deliberate interference with the legislative power to choose what makes for a good rule. Admit the propriety of “fixing mistakes” and you allow a general power to identify “mistakes,” which means a

    privilege to make the real substantive decision. Even when the statute invites modification, as the “context clause” in some definitions does, judges are limited to considering the

    linguistic context rather than trying to “improve” the statute’s substantive effect." (Easterbrook's position on the canon is rooted in notions of democratic legitimacy, and so it may well be that it appropriate for the EPA to consider absurd results even when a judge should not. Even so, the time for such consideration it seems to me is past.)

    I've read and re-read my initial comment above, and still don't see the references to separation of powers or tyranny of anything of the sort. I know you're not good about citations and you are apparently of the habit of finding clear statements where there are none, but in this case would you be so kind as to show me where I've referenced those things you say I have?

  20. Word correctness alert:

    Harmful is a different concept from Toxic.

    It is not helpful to the discussion to treat them the same.

  21. "No, I did in fact address that [argument]"

    No, you didn't – quoting a sentence that makes a point somewhat related to an argument is not "addressing" the argument. Joyner is complaining about "unilateral" (his word, used among other places in the <a / rel="nofollow">title of his post) action by an executive agency. Whatever pet theories you have about judicial overreaching, they're irrelevant to the complaint Joyner is lodging.

  22. @ Mobius

    My dictionary defines toxic as "poisonous." So, toxic substances are harmful, aren't they? So toxics are (at least) a subset of harmfuls. Does the inclusion work the other way? Are harmfuls a subset of toxics?

    Oxygen is certainly harmful (indeed, toxic) at too high a partial pressure of O2. Nitrogen (an inert gas) is also harmful, and at least arguably toxic again at too high a partial pressure. Ever heard of a little thing called nitrogen narcosis (also called rapture of the deep). Reduce the pressure too rapidly and that same nitrogen can kill (ever heard of the bends?) CO2 is also directly toxic at too high a partial pressure.

    I think we're sitting in a grey area here. I think the shade of grey is inversely proportional to your home's elevation above sea level. If I lived in Bangladesh, I'd be really scared about now. Despite Brett's special pleading, the science is in: the question is a matter of magnitude, not a matter of if.

  23. I my reading, 'Harmful to humans' is inclusive of things that cause problems for humans. But not necessarily physical harm to their bodies. We regulate SO2 emissions to prevent acid rain. The resultant acids don't hurt humans directly – they are too dilute. But those acids affect ecosystems, which we consider useful.

    If it's within the purview of the EPA to regulate SO2 for their acidification of the rain, why not CO2 regulations for the acidification of the oceans?

  24. "When Congress does the same for CO2, the EPA will have authority over CO2 emissions. "

    It is sad that Thomas did not get to argue his case before the USC. Surely they never heard this argument and if they had, the USC would not have ruled that the EPA has authority.

    Someone has missed their calling. The country needs more such men, pointing out the courts have no power to compel action! Quick, Heritage or CEI, snap up this talent immediately!!!!1

  25. I'm amused to view this comment thread in the context of Zasloff's next post about libertarian moral logic. That comment thread got all up in the relationship between theories of morality and theories justifying state power, particularly the difficulty of avoiding unsupported assumptions when going from morality to politics.

    In my view, and the view of many learned in climate research, all constitutional and legal wrangling over ghg management suffers from a central unsupported assumption: continuity of governance and society can be taken for granted (or even considered plausible) over the next 100 years. Failure to mitigate our emissions will plausibly, and maybe probably, lead to the collapse of all the named and extant institutions we're discussing here.

    Wrapping ghg discussions in legal terms is to me a distraction from the real question of the day: do we go out in a blaze of self focused glory, or make a sincere effort to save our society and institutions?

  26. Thomas, I'm just saying you should have argued the case, because the USC found that CO2 fits the definition of a pollutant, and that the EPA thus has authority to regulate. Had you argued per your upthread, perhaps the USC would have found otherwise and stated their decision differently.

    This is not to say I don't expect the oil companies to push their Congresscritters to do what it takes to take this authority away.

  27. "Brett and Thomas never address Jonathan’s point that the Supreme Court has already ruled on the question and found that the EPA has not just the authority but the legislative duty to act if the science shows that some emissions have the effect of harming health, even if the effect is indirect (e.g., via climate change) rather than directly via toxicity. Of course the Court might have been wrong, but its ruling is authoritative. To call an administrative action that implements a statute as the Court has interpreted it “lawless” is simply an abuse of language."

    I'd say that all sorts of recent Supreme Court decisions could be considered lawless. Take for example their indefinite, uncharged detentions rulings 'validating' the lawless excesses of the Bush anti-terrorist policies. And some of you might have some things to say about a certain ruling in 2000.

    In any case, the problem with this type of ruling and all sorts of others of the type, is that they aren't self-limiting. Basically the ruling suggests that if there is any possibility of harm, the EPA can have jurisdiction–therefore CO2 is under the EPAs purview. The problem is that practically *anything* can be argued to be possibly, indirectly harmful. And that isn't a *delegation* of Congressional power that is an abdication. This is the same kind of thinking that leads to ridiculous nationalized drug laws, crazy implementations of civil forfeiture laws, and out of control use of Patriot Act powers for non-terrorist crimes. The Congressional authorization of the EPA shouldn't be read as: "to regulate all things that might cause indirect harm". It was a long and complex authorization act. If they had wanted the EPA to regulate all things that might cause harm it could have been noticeably shorter. They also could have gotten rid of all sorts of other government agencies along the way. Governmental attempts to interpret it in that fashion are definitely an end run around Congressional power and are definitely a push toward lawlessness in the sense of how law is supposed to work under the Constitution. This is *especially* true considering that the issue was taken up in Congress and voted down.

  28. I like how the repeated use of "lawless" tries to slide seamlessly into a rant about authority while hand-waving away from 'pollutant'.

    The path is clear: CAA = air pollution => CO2 = pollutant => EPA has authority to regulate pollutants under CAA = EPA regulates CO2. Not hard to follow, despite the hand-waving.

  29. o Once again, we observe how useful is the fear phrase template: "Proposal X will gut regulation/legislation Y".

    o We also observe how less useful is the proposition: "X, written Y years ago, doesn't need to be changed", as the next phrase "despite changes in society" is usually left out. The people who understand 'time marches on' are not fooled by such tomfoolery.

    o Lastly, we observe how few options there really are for advocates of display. Their arguments are very few and are rehashed, recycled, refurbished, and repurposed endlessly. One suspects there has been nothing new under that particular dim sun for many years now.

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