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Comment by ARandomerDude | Hacker News Reader

From the Supreme Court's majority opinion:

> a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.

Honestly it's hard to see how that position is unreasonable. If Congress wants the EPA to have this power, let them vote to give it. If Congress does not want the EPA to have this power, then the EPA shouldn't attempt to exercise power they don't have. There's really no other solution if we're going to have a representative government.

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> If Congress wants the EPA to have this power, let them vote to give it

That is precisely what they did. It was called the Clean Air Act, and Congress passed it in 1963.

SCOTUS's reasoning here is hinky, to use an official legal term: it's clear that Congress has empowered the EPA here, but that SCOTUS finds it easier to claim that they never truly did rather than that they oughtn't to have.

> That is precisely what they did. It was called the Clean Air Act, and Congress passed it in 1963.

Given that the danger of CO2 was completely unknown in 1963 and green energy technologies almost didn't exist. I'm not sure how you can claim that.

> Given that the danger of CO2 was completely unknown in 1963

This is a bizarre claim!

From https://climate.nasa.gov/evidence/

> In 1896, a seminal paper by Swedish scientist Svante Arrhenius first predicted that changes in atmospheric carbon dioxide levels could substantially alter the surface temperature through the greenhouse effect. In 1938, Guy Callendar connected carbon dioxide increases in Earth's atmosphere to global warming.

Also read: https://en.m.wikipedia.org/wiki/History_of_climate_change_sc...

Rather than "completely" maybe it would have been more correct to say "widely". The idea of global warming basically started in the late 60s with a very few scientists talking about it.

Rediscovering old previously discredited scientific papers from the late 19th and early 20th century doesn't make it date all the way back to then.

This simply misses the point. Very few laws are restricted to the best science of their day: nearly all allow for administrative interpretation so that the US Government can apply the law without having to relitigate its essential qualities.

The CAA empowers the EPA to identify pollutants, and that's what the EPA has (correctly!) done. Whether or not the scientific consensus from the 1960s agrees is immaterial.

> This simply misses the point. Very few laws are restricted to the best science of their day: nearly all allow for administrative interpretation so that the US Government can apply the law without having to relitigate its essential qualities. Precisely, if it was the case then arms of the second amendment wouldn’t apply to modern day firearms.

Maybe, or one could argue that the second amendment applies to the most modern and capable arms of the day e.g. the musket of the time = an assault rifle today

Don’t want to talk guns, but want to illustrate the challenges of making such claims

Why would the Second Amendment be interpreted in that way and the CAA not be allowed similar breadth in interpreting what is a pollutant? The latter is actually explicit in this regard; the former has been constructed through judicial interpretation.

No one was talking about CO2 in 1963 other than a few scientists. It didn't reach critical mass until the late 80s. The law was written for known pollutants at the time. Congress is just going to have to add to the powers of the EPA, it's as simple as that.

Did the text of the Clean Air Act explicitly say it applies only to pollutants known in 1963?

If laws can’t be interpreted to account for new circumstances, then it must be legal to pay to have someone killed as long as you use Bitcoin — after all the law didn’t specifically ban the use of Bitcoin.

Our understanding of the greenhouse effect dates back to the 19th century.

Section 202(a)(1) is pretty explicit that the law does not limit the pollutants under the low to those known to the legislative body[1]:

> The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.

Edit: In other words: even if we could show that Congress was unaware of CO2's effect on the environment, it simply doesn't matter. The Act empowers the EPA to identify and address the pollutants.

[1]: https://www.law.cornell.edu/uscode/text/42/7521

Can't wait to see your face when you read what the Second Amendment allows.

You can pry my flint locked muzzle loader out of my cold dead hands! :)

I don’t think an originalist would take this view. To use hyperbole, I don’t think anyone intended the bill to empower the epa to shut down the energy industry.

This is sort of out of scope of originalism: it concerns an Act of Congress that delivers power to the Executive, not the contents of the minds of the Framers of the Constitution. The Framers perhaps didn’t expect a large Federal Government to begin with, but the cat is out of the bag on that one (and is not consistent with SCOTUS’s actual ruling here).

The bill is clearly not intended to “shut down” anything. It empowers the EPA to protect the quality of the air that we all breathe, and that’s how it was applied. If coal power plants need to externalize their pollution to be financially viable, that says more about our failures to preempt the situation than some kind of bloodthirsty plot on the EPA’s part.

Look I’m all for addressing climate change head on. But I guess at the end of the day I just see this as regulatory overreach. Can one squint and see the rationale, definitely. But my simplistic mind sees the original intent of the bill as a way to protect against substances that are physically poisonous/harmful (radon, arsenic, etc). It was not intended to regulate safe emissions (co2) (that creates harm by increasing severe weather events/changing climate). If were to make a hyperbolic argument, it seems you could stop cement making, cattle ranching, and limit population control based on the EPAs interpretation of CO2 as a pollutant.

Why did congress consider (and then not pass) a bill that would have done all the things (such as cap and trade) that the EPA then went on to do?

Clearly Congress itself thought there was a law needed - that the EPA didn't have the authority to do what it went on to try and do.

> Clearly Congress itself thought there was a law needed

Since Congress only considered the law and didn't actually pass it, I would say that they did not think there was a law needed.

For a litany of reasons:

* Congress's priorities are not my priorities, your priorities, or even particularly reasonable.

* Congress's ability to efficiently pass laws (at least ones that don't involve funding the military or lowering taxes) has consistently declined over the last 30 years. The last 15 years, in particular, have seen incredibly ugly political brinkmanship over basic legislative responsibilities. In other words: there may be abstract votes in favor of new EPA laws but they're difficult (impossible?) to materialize.

* Congress may feel it has no particular input to provide to the EPA's administrative interpretation of the law. This is the explanation that strikes me as most salient (even if all others happen to be correct): it's entirely possible that a majority of Congress sees no particular problem with the EPA's policies, and would much prefer to pass the buck and play political games around the EPA rather than actually changing legislation.

If congress was really unhappy with the EPA's rules they have the power to reign them in. So in this the Supreme court is intruding.

The dissenting justices argue that congress already voted to give EPA the mandate to address air pollution. The majority opinion is that “climate change” is a different issue than “air pollution”.

For my part, I think it’s a bit of a stretch to say that CO2 emissions aren’t covered by the clean air act. And since the decision clearly follows the conservative agenda, it’s hard to not see it as a politically-driven decision.

Firstly, I agree global warming is happening, and that it's caused by humans, and that we should be working to stop it.

However, CO2 emissions are not pollutants in the normal sense of the term. They do not directly harm human health by their existence in the environment.

> They do not directly harm human health by their existence in the environment.

This is "the donkey hung the man, not the executor yoking the donkey" logic. We have overwhelming evidence that CO2 emissions are a primary efficient cause for climate change, which we have overwhelming reason to believe will directly harm the lives and welfare of billions.

It doesn't matter that we won't die of CO2 asphyxiation itself, because neither the CAA nor common sense establishes that standard.

The parent statement is not that CO2 is harmless, but that it is not a pollutant.

Not everything that leads to harm is pollution.

> Not everything that leads to harm is pollution.

Of course not. But things that come out of tailpipes and smokestacks are frequently pollutants, and it staggers the mind to think of a sense in which CO2 does not meet even the "limited" sense of the word under the CAA (i.e., a sense strictly limited to motor vehicles.)

But the second order negative effects have been demonstrated with an incredible amount of scientific rigor.

This is like saying we shouldn't ban an industrial chemical that is destroying US wheat production but does not directly impact human health.

Congress did vote for EPA to have this power. The Supreme Court decided that they didn't like where that power led, and is now restricting the types of laws that Congress can make.

How do you know what Congress was thinking? You can't read the mind of Congress.

Also, the Supreme Court has always restricted the types of laws that Congress can pass, based on what the Constitution says. However this doesn't involve Constitutionality. Congress can absolutely pass a law giving this exact power to the EPA and the Supreme Court couldn't touch it.

I don't know what they were thinking, but I know what they wrote in the law.

Supreme Court is just polical and radical at that. That is all there is to it.

Congress voted in 1970 for the EPA to have the power to address climate change by controlling the nationwide mix of power generators? https://en.wikipedia.org/wiki/Clean_Air_Act_(United_States)

I think if you asked any of the folks in 1970 whether that was the intent of the Clean Air Act they’d be surprised.

I don't understand why your question could possibly be answered by anything but a yes.

Can you provide any evidence that regulating clean air does not apply to air pollutants?

If a person thinks that CO2 is not air pollution, then the onus is on them to show that it's not. Repealing an entire class of laws in order to stop undesired scientific conclusions is not a good way to set legal precedent.

How did that act give carte blanche to the federal government to basically completely commandeer the electricity sector in each state?

https://en.wikipedia.org/wiki/Clean_Power_Plan

> The plan will require individual states to meet specific standards with respect to reduction of carbon dioxide emissions.[22] States are free to reduce emissions by various means, and must submit emissions reductions plans by September 2016, or, with an extension approval, by September 2018.[23] If a state has not submitted a plan by then, the EPA will impose its own plan on that state.[23]

It's not commandeering the electricity sector, it's regulating air pollution. This is not carte Blanche, it was laid out in great detail through the executive authority and extensively documented to be within the authority of the EPA.

However, some politicians didn't like this outcome. They didn't have the votes, so they are legislating from the bench.

There's no other way to view this. What you call "commandeering" is exactly the same as all the other regulations, like sulphuric oxide for acid rain. It's just that some people have politics that takes precedence over the possible scientific outcomes.

The Clean Air Act embodies a very specific mechanism. It gives the EPA the power to set emissions limits, but provides that those limits must be based on the capabilities of emissions reduction systems, mainly scrubbers of various sorts. And there’s different levels for new versus preexisting sources. So for a new source, the, EPA can set the limit at a level that can only be achieved with BACT (best available control technology). For an existing source, it can only set the limit at a level achievable by lesser control technology.

The thing about CO2 is that there is no control technology you can install on a plant to scrub out the CO2. That would ordinarily preclude the EPA from setting an emissions limit—because it can only set those limits based on what control technologies can achieve.

So what the EPA did was say that states could meet the emissions targets by switching from coal to renewable sources, and justified setting an emissions limit on the theory that this was an “emissions reduction system” under the statute.

The Clean Air Act doesn’t give the EPA blanket authority to “regulate clean air.” Congress can’t permissibly delegate an entire sector over to an administrative agency under the Constitution, and didn’t. The statute gives the EPA specific approaches that it’s allowed to use.

The EPA was following the statute when it made its carbon ruling. Past actions of the EPA have been similar, though you phrase it as "delegate an entire sector over to an administrative agency," it's exactly what's been done in the past.

The only difference this time is that it's CO2 as the pollutant, and fossil fuel interests are extremely politically powerful, and don't like the science that shows that CO2 is a pollutant. That's it. Remember when the ruling happened, and all sorts of people were like "CO2 can't be a pollutant"? This is the outcome of that thought.

If EPA did not have this authority, by law, then this would have been challenged on much easier grounds far before. In order for the EPA's actions to be overturned, the court had to overturn the very law itself.

This ruling has nothing to do with whether CO2 is a “pollutant.”

Congress cannot delegate a sector to an agency, because agencies are executive branch entities and the executive branch can’t make laws. Executive branch agencies operate under the fiction that they are merely enforcing laws Congress has created. That’s why Congress can’t delegate agencies the power to make rules with the force of law in an entire sector. It has to be more specific, so that the agency is simply “filling in the details.”

And the Clean Air Act is specific. It allows the EPA to fill in the details about pollutants and emissions levels. But it doesn’t give the EPA blanket authority to do whatever is necessary to achieve those targets. It has a detailed menu of measures, such as requiring particular types of emissions control technology on individual plants.

In this case the EPA told the entire energy sector to switch away from coal to renewables. That wasn’t on the list of measures available under the Clean Air Act.

> That wasn’t on the list of measures available under the Clean Air Act.

There's a whole bunch of wrong rolled up here. The regulations were about how to stop CO2 from polluting the atmosphere. From there, you try to play Senator CS to shift this into some sort of weird "delegating an industry" language.

But in the end it was all about regulating CO2.

If the EPA had acted outside its authority, in what you term "delegating an industry," lower courts would have said that.

Instead, in order to stop the EPA's actions, the Supreme Court had to change the scope of the law that was passed.

> There's a whole bunch of wrong rolled up here. The regulations were about how to stop CO2 from polluting the atmosphere. From there, you try to play Senator CS to shift this into some sort of weird "delegating an industry" language.

> But in the end it was all about regulating CO2.

The regulations were about how to stop things OTHER than CO2 from polluting the atmosphere without destroying the US economy. Things like Sulfur Dioxide and fly ash.

CO2 may fall under the language as written, and it may be appropriate for the EPA to regulate it, but that was not the central example of an airborne pollutant back in the 70s when this was written (Or 90s, when it was amended).

Unfortunately for the rest of the world climate change doesn't wait to see what a Congress hamstrung by one political party that denies its very existence is going to do. That change has no political reality of coming from that branch, neither now not in any reasonable future that's going to matter.

Indeed. Un-elected regulatory agencies arrogating astronomic levels of power is far bigger danger than CO2 in the atmosphere.

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