We need legislation to ban these chemicals outright so that companies can't pull out these kinds of arguments to keep poisoning our food and the environment.
We thought we had it, though. The whole idea behind the EPA's charter is that it's empowered to regulate harmful materials for the benefit of public health and the environment.
This is a technicality (letter, not spirit) legal argument the court is making: the chemicals in question have a long history in industry, because when they were introduced we didn't know they were bad. Now we do, and the EPA banned them.
But no, say the clever supervillains on the Fifth Circuit: the specific rule under which the EPA issued the ban was intended for new processes, not old ones. So they have to issue a different regulation under a different statute. Which they totally have the legal power to do, but because they didn't do it exactly right the court says the whole ban is ejected and we can go right back to making poison.
A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place for obvious reasons. But... yeah, this is the fifth circuit.
Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."
They don't usually do it, but the scope of what they _can_ do has historically been broad.
Transiently keeping a ban seems pretty plausible as a possible outcome, to me.
(I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.)
[1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/yor...
In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is.
[0] http://realneo.us/system/files/HousingJury20100723135802-1.p...
The court literally conceded that the EPA has the authority to regulate this material! (See section IV at the end of the decision: "We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed [...]")
That's what's so infuriating here. The court recognizes that the EPA did something within its regulatory purview and for public health reasons that the court doesn't dispute. And it undid it anyway, quite literally "endangering public health" in a legal sense, all because of a technicality that even the court recognizes isn't material.
Again, there are plenty of reasonable ways to address the procedural fuckup without stepping in and stopping the EPA from doing what the EPA is designed to do.
>stepping in and stopping the EPA from doing what the EPA is designed to do.
The EPA was designed to follow the Toxic Substances Control Act (among other laws).
The court is saying the EPA can and should use Section 6 to regulate the chemical and process in question, rather than bastardizing Section 5 to skirt due process.
The environmental laws are full of those distinctions. For example, under the clean air act, the emissions control technology you need to use for new emitters is different than for existing emitters. Congress doesn’t like to disrupt industry because voters care vastly more about jobs than they do about the environment.
Why would it be “reasonable” for a court to leave an illegal agency order in place? That seems like the opposite of reasonable—that sounds like lawlessness.
>Inhance asserts that “new” means “having recently come into existence,” or “not previously existing.”
>the EPA argues that a “significant new use” is any use “not previously known to the EPA.”[0]
Lots of commenters seem outraged by the court's decision here but to me EPA's claim is outrageous.
[0] https://peer.org/wp-content/uploads/2024/03/3_22_24-Fifth-Ci...
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>... The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
Emphasis mine.
The law makes a distinction between new uses, which require certain notice to the EPA, and existing uses. The idea is that the EPA can be more aggressive with a new thing that isn’t being used yet, than an existing thing that people are relying on. That balance was written into the law.
The environmental laws are full of these frameworks that force the EPA to make different trade offs. They’re not loopholes for industry, they’re the reality of balancing costs and benefits in a country where voters will throw you out of office if gas goes above $4/gallon. You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
That's up to a judge, and if necessary, the supreme court.
Lotta people don't give enough credit to a system that has been around longer than most others in the world. There's a reason why everyone bets on the USA, there are contingencies for contingencies for contingencies. If it's important enough it will get done.
On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
The Supreme Court is clearly unhinged and monstrously outdated. Checks and balances? Lol.
And the fish rots from the head. The abuses of lower courts and basically every regulatory body are well documented, and the accountability for corrupt judges is near-zero. Any institution which actually functions to protect people gets defunded.
> There's a reason why everyone bets on the USA
Because a dying empire is liable to do just about anything to get what it wants. Genocide, mass murder, arming your enemies, blackmail on a global scale, sanctions that murder millions, wrecking the climate, criminalizing abortion - nothing is off the table.
Among many other reasons, that's why the world has viewed America as the number 1 threat to democracy, world peace, and stability every single year since 2003. "Everyone bets on the USA" to fuck shit up. That's not an exaggeration, though American's never believe it. It's not close either. We're number 1.
Very few people trust American regulation; whether on food, chemicals, privacy or anything else. We are a global laughing stock; a stark example of why unregulated capitalism is so dangerous.
There's a reason why America's water quality is among the worst in the developed world. There's a reason why we're mocked world-wide. There's a reason why our Presidential 'options' are the two most unpopular politicians in the country for three elections running, and it's not cause our system is working so well.
That's a silly strawman. In that case you'd sue for inappropriate regulation and win, just like this case, but better because you'd be right. The EPA's charter doesn't allow for political fundraising, it would be a trivial case to win.
The complaint here isn't that courts shouldn't have the ability to oversee government agencies to make sure they're doing it right. The complaint here is that the fifth circuit is deliberately interfering with the operation of a government agency doing what it is supposed to do.
Even if the government goes after them, they'll be worthless. They specialize in fluoridated products, I bet PFAS is most of what they make. So the stock will be worthless.
Their physical holdings are likely to be... Primarily fluoridating equipment, which won't be worth much if we're banning those processes anyways.
There won't be anything worth anything to seize, it'll be the government's mess to clean up.
> On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
That company would presumably sue under the argument that the EPA is only authorized to regulate chemicals harmful to the environment? It is a dramatically easier solution than "have Congress deal with it", which historically has meant "do nothing about it".
Also, your "solution" just pushes that problem up a tier. What if Congress decides to target a political party? That one is much harder to fight in court too.
The EPA has wide unilateral authority to ban new uses, for which we have little to no usage data for. But if we start executing those uses and get actual usage data that a substance is harmful, the EPA is toothless?
And that's a good thing why exactly?
> You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Yet we do, they apparently can only do it based on wild guesses though. Data and informed decisions be damned; well just let them keep making PFAS, and have the citizens pay for the externalities through health insurance premiums, the true blue American way.
> Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
Quick, someone tell the tobacco lobby, they're gonna love this! Something something long standing usage something something loss of jobs something something market cap something something, you can't regulate cigarettes!
I don't think the parent comment said that. They just said that the rules were set this way deliberately, and that it's not just a loophole, which is an interesting and informative thing to point out.
I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
It's like right at the top of that post. And
> But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
At the bottom. It's capped on both ends with calling it a good thing.
> I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
Sure, but questions about whether the rule is deliberate or not are answering "how", not "why". In fact, it's mostly trying to distract from the "why" to answer "how".
It’s not toothless, but it has to use that data to make a stronger showing of harm balanced with economic impact.
You’re looking at it only from the point of view of avoiding harm from pollination. But the economic side of that dichotomy is that it’s less pain to ban something that nobody is using yet than something that’s widely used and people rely on.
Shoehorning old laws and statutes to cover new things, is probably not the best way to go about regulation -though it happens. It's preferable that they establish new laws to address current issues. I prefer the courts to not be activist and for them to make the legislators actually do the work they are supposed to be doing rather than being timid for fear of upsetting voters or donors. It's their job to act on behalf of their citizenry.
Then again, these are the same people who think Biden somehow has direct control over gas prices, and not, you know, the Saudis who run OPEC and have very strong ties to that same failed businessman and political party so I guess they don't have a great grasp on reality. Or the ability to recognize pattern, since the gas price regularly goes up before elections for some reason
See my previous comments on the matter:
https://news.ycombinator.com/item?id=39875212
There was argument over how to interpret the statute and one of the attorneys tried buffaloing the judge with “Well actually judge, I’m on the committee that drafted the bill and our intent,” The judge cut him off and retorted that he didn’t care what anyone intended, he was going to go by what the statute actually said.
I made a mental note to never argue legislative intent in that court.
It’s impossible to write any law which covers every scenario and is not either overbroad (penalizes actually desirable or ‘ok’ behavior in some cases), not being possible to get around for bad behavior, or so vague it heavily restricts desired behavior.
Hell, look at the legal battles and drama around murder trials or corporate malfeasance for clear examples. And those are the ones where the bad actors were so clearly being bad that professionals felt they could nail them to the wall in court.
Also, as the old saw goes - ‘if the letter of the law is not in your favor, argue the intent.
If the intent of the law is not in your favor, argue the facts.
If neither the letter nor the intent of the law is in your favor, pound the table.’
Carl Sandburg perhaps?
For example - did someone commit first degree murder or something else (manslaughter, second degree murder?), if they intentionally laid in wait and shot someone they thought was person A - but it was actually person B, who looked similar but they actually didn’t know at all.
After all, they didn’t intentionally commit premeditated murder against person B did they? But they did definitely premeditate something that became a murder!
So was this negligent homicide in fact (they accidentally killed simeone who wasn’t their target due to negligent behavior), or first degree murder (intent) because they intentionally murdered a human being with premeditation - though it was actually an accident they killed that particular human being, and they had no premeditation or intent to kill that particular human?
TL;DR there’s definitely room to dispute whether this decision was merely “calling balls and strikes” based on the meaning of the law or kinda a damn stretch.
A good judge who recognizes their intended role in the system. They are there to interpret the law and apply them, not to create them.
That sometimes leads to situations like this where the outcome is silly, but that's the fault of the system, not the judge.
If we decide it's worth letting unelected and mostly unaccountable dictators write laws, then we could fix this particular problem. IMHO it's not worth it
In a long running country, stability and longevity is preferred, so strict absolute adherence to process is critical.
And you can’t have both.
https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_P...
This was obvious.
If that's not the worst, how do you define worst?
If you bothered to read the ruling, you would learn that the EPA specifically exempted ongoing processes as of and after 2015 under Section 5. This obviously exempts Inhance's fluorination process and is in line with Section 5's wording.
You would also learn that the EPA did not include fluorination among its list of things to regulate.
The EPA then cited those regulations under Section 5 to order Inhance to stop their decades-old fluorination process.
That is simply bullshit, that is pulling regulations out of thin air. Note that the court explicitly cites Section 6 is what the EPA should use to regulate PFOA, which the court explicitly says is by itself not wrong.
Any reasonable person should read the ruling and most likely be applauding the court for bringing a misguided executive agency into line, because the United States of America is a country governed by rule of law and the EPA in this instance did not follow due process.
I did read the ruling[1], and unless the ruling is straight up perjury the EPA dropped the ball.
Criticizing the court for not ruling the way you wanted, and presumably without reading the ruling because you're grossly disregarding their value, is unreasonable and erodes rule of law.
[1]: https://news.ycombinator.com/item?id=39876314
>a country where citizens get to distrust their government.
And the court called out the government (the EPA) for being unworthy of trust in this instance.
Indeed, the court is taking a non-binding FAQ on the EPA website, and treating that as more legally constraining on the EPA than the actual regulations they issue. That's f'ing ridiculous.
And to make things more ridiculous, they created a binding implication, where non actually existed in the proposed language that the 2015 exemption would not apply to ongoing uses.
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
So not only are the EPA aware of what Section 5's "new use" language means and tried to twist it during enforcement, they ignored their own very specific definition to try and regulate Inhance.
That is what the courts are telling to EPA to stop doing. The courts are ordering the EPA to cite the appropriate law and write appropriate regulations following due process first, otherwise known as Section 6, in order to regulate Inhance and their fluorination process which the court reaffirms is something the EPA can do.
They clarified the definition of "new use", but PFAS was already covered by the "new use" as defined in the statute.
Ergo, judicial perjury.
That's not what anyone said though. There's a difference between disagreeing and being unreasonable. Here, you too are being unreasonable because you've purposefully skipped past this in order to twist this even more politically.