Posted by: JohnnyRook | June 30, 2008

White House Ignores SCOTUS By Sticking Fingers in Ears and Shouting La, La, La, La

My apologies to mnemosyne9 at Daily Kos for the similarity to the title of his/her diary. I did not discover it until after having published this one. Mea culpa.

Let’s start with some background:

In April 2003, in a move consistent with the hostile approach that the Bush Administration has taken toward public health, the environment and environmental regulation, the US Environmental Protection Agency denied a petition from the International Center for Technology Assessment and a number of other organizations to regulate greenhouse gas emissions from motor vehicles.

As a result, 12 states, three cities and 13 environmental groups filed suit against the EPA to force it to comply with its obligations under the Clean Air Act.

On April 2, 2007 the United States Supreme Court ruled 5-4 in Massachusetts v. Environmental Protection Agency, that the EPA had the authority under the law to regulate greenhouse gases as an air pollutant under the Clean Air Act.

EPA denied 1) that it had such regulatory authority and 2) that even if it did have it, it would not exercise it because of scientific uncertainty over cause and effect.

As Justice Stevens pointed out in his opinion:

EPA reasoned that climate change had its own “political history”: Congress designed the original Clean Air Act to address local air pollutants rather than a substance that “is fairly consistent in its concentration throughout the world’s atmosphere,” 68 Fed. Reg. 52927 (emphasis added); declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid. (citing H. R. 5966, 101st Cong., 2d Sess. (1990)); and addressed global climate change in other legislation, 68 Fed. Reg. 52927. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the agency to address it.[my boldface -JR]

Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report’s statement that a causal link between the two “ ‘cannot be unequivocally established.’ ” Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930. [my boldface -JR]

Justice Stevens responded to these arguments as follows:

These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law [my boldface -JR]

In short 1) EPA does have the authority to regulate greenhouse gas and it’s concerns about “policy judgements” were irrelevant to the question at hand and 2)if EPA cannot rule because of scientific uncertainty it must clearly state this.

In other words the only way that EPA could refuse to regulate greenhouse gases would be if it were to reject the conclusions of the scientific community as expressed in documents such as the reports of the IPCC and the National Academy of Sciences. Obviously, the EPA did not want to do that as it would have made the agency look like the Kansas of the scientific world.

As the New York Times revealed last week, in November, 2007 EPA attempted to comply with the Supreme Court’s decision by sending an email to the White House in which it stated its conclusion that greenhouse gases are pollutants that must be regulated. The White House responded by telling EPA officials that it would not be opening the emailapparently based on its philosophy of email no evil, read no evil, there is no evil.

So what did EPA do? Storm over to the White House in righteous indignation to hand over the document in person? Of course not. Instead Bush’s environmental lapdog, EPA head, Stephen L. Johnson, tucked his tail back between his legs, (where it has been 99% of the time since his appointment to head the EPA in January 2005) and ordered the report toned down and reissued without a conclusion.

Check out this Daily Show coverage of the unopened email.

So, what was it that was so threatening in the report that the White House stuck their collective fingers in their ears and trilled la, la, la, la, la to make it go away?


This week, more than six months later, the E.P.A. is set to respond to that [Supreme Court} order by releasing a watered-down version of the original proposal that offers no conclusion. Instead, the document reviews the legal and economic issues presented by declaring greenhouse gases a pollutant.

Over the past five days, the officials said, the White House successfully put pressure on the E.P.A. to eliminate large sections of the original analysis that supported regulation, including a finding that tough regulation of motor vehicle emissions could produce $500 billion to $2 trillion in economic benefits over the next 32 years. The officials spoke on condition of anonymity because they were not authorized to discuss the matter.

Both documents, as prepared by the E.P.A., “showed that the Clean Air Act can work for certain sectors of the economy, to reduce greenhouse gases,” one of the senior E.P.A. officials said. “That’s not what the administration wants to show. They want to show that the Clean Air Act can’t work.”

As DarkSyde pointed out on the front page of Daily Kos today, this analysis by the New York Times was confirmed by the Wall Street Journal in today’s edition [subscription only].

The Bush Administration does not want to cut greenhouse gas emissions because although it would be good for the American (and the world’s) people in terms of our health, our economy and our civilization, it would be harmful to the profits of Bush’s cronies in the oil, gas, coal, electrical utility and automotive industries. Just as they have since day one, this administration continues to sacrifice the public good to it’s own sense of entitlement.

The administration and its corporate sponsors want people in this country to see the switch to a sustainable economy as inevitably causing hardship and suffering, rather than understanding that such a switch not only offers us the possibility (shrinking every second that we fail to act) of avoiding (in cooperation with the rest of the world) the catastrophe of Climaticide, but also of stimulating our economy by creating millions of good paying jobs in myriad new industries.

la, la, la, la, la, la, la, la, la, la, la, la…

[crossposted at Daily Kos]


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