Cooler Heads Digest 28 March 2014
William Yeatman
What is the proper scope of review when an Article III court adjudicates a federalism dispute under the Clean Air Act? Is a court supposed to review the reasonableness of the state’s determinations? Or is it supposed to review the reasonableness of the EPA’s review of the reasonableness of the state’s determination? Simply put, to which sovereign should courts defer?
In light of the Obama administration’s aggressive oversight of Clean Air Act programs operated by the States, this is a hugely consequential question, with billions of dollars at stake. Yet there exists little statutory direction and conflicting case law to guide lower courts in their review of State-Federal disagreements pursuant to the Clean Air Act. On January 29, the State of Oklahoma petitioned the Supreme Court to revisit this matter, and clarify which sovereign warrants ascendant respect from reviewing courts.
Below, in the first of a two part series, I explore how the cooperative federalism regulatory regime established by the Clean Air Act confuses judicial deference to agency decision-making. Ultimately, I urge the Supreme Court to grant Oklahoma’s cert petition, in order to cut through the uncertainty and establish unequivocally the boundaries of authority between the State and Federal Governments under the Clean Air Act.
In the second part of the series, I will make the case that States, and not the EPA, are the proper recipients of the court’s respect.
Cooperative Federalism Conundrum: Delegation Can Be Split; Deference Can’t
In a previous post, I lamented the fact that Senate Majority Leader Harry Reid is out of touch with the American people on climate change. On further review, it turns out that he’s also out of touch with himself.
As I noted this morning, Sen. Reid recently said that climate change was the world’s # 1 most pressing problem. In this spirit, the Majority Leader on Monday participated in an all-night talkathon on the Senate floor, on the subject of global warming alarmism.
Sen. Reid’s sudden enthusiasm for climate change mitigation yesterday prompted a reporter to ask why the the Senate did not move climate change legislation in the 111th Congress when Democrats briefly had the 60 votes necessary to overcome a filibuster. In this morning’s Energy & Environment News ($), Jean Chemnick reported Reid’s answer:
“We didn’t have 60 votes, [except] for only a very short period of time. We had a number of other things we were working on.”
Basically, Sen. Reid responded by saying that the Senate didn’t pass climate legislation, because it had other priorities. So, climate change is the world’s most pressing problem…except when it isn’t?
Last week at the Conservative Political Action Conference in Washington, D.C., CEI Senior Fellow Marlo Lewis participated on a panel given to the subject of global warming. Joining Marlo on the dais were Joe Bast (President, The Heartland Institute), Steve Milloy (Director of External Policy & Strategy, Murray Energy Corporation), Marc Morano (Publisher, Climate Depot), George Landrith (President, Frontiers of Freedom), and Shannon Smith (CEO, Abundant Power Group). Video below.
As Senate Majority Leader, Harry Reid (D-Nevada) is one of the top three most powerful elected officials in America. It is, therefore, rather disconcerting that his priorities are so out of line with those of the American people. To wit, note the discrepancy between the two excerpts below.
In the first (above), Sen. Reid avers that climate change is not just America’s, but the world’s #1 priority. In the second (below), a Gallup pollster reports that climate change is 14th on a list of 15 priorities, according to U.S. voters.
On February 28, 2014, I took part in a National Review Law and Disorder Debate, “Man vs. Wild: California in Crisis,” in Washington, D.C. The keynote speakers were Representatives David Valadao (R., Calif.) and Jim Costa (D., Calif.), and panel members included me, Maria Guiterrez (from the Central Valley), and Aubrey Bettencourt (a California almond grower). The moderator was National Review senior editor Ramesh Ponnuru. Click here to view the keynote speeches. Below, I’ve posted the panel discussion.
In the News
‘All of the Above’ Is an Argument for Cronyism
Robert Bradley, Jr., Master Resource, 28 February 2014
Fact-Checking Bill Maher on Climate Change
Greg Pollowitz, Planet Gore, 28 February 2014
Soon, Climate Change Will Be the Cause of Everything
Charles C. Cooke, National Review Online, 27 February 2014
The Original Sin of Global Warming
Robert Tracinski, The Federalist, 26 February 2014
The EPA’s Breathtakingly Lawless Attempt to Regulate Greenhouse Gases
Marlo Lewis, Forbes, 25 February 2014
Obama’s Rush to Regulate
Ben Goad, The Hill, 24 February 2014
The EPA “Spy” and Double Standards
Wall Street Journal editorial, 23 February 2014
[click to continue…]
In the News
EPA Misses Key Concerns over Sue and Settle Secrecy
William Kovacs, U.S. Chamber Blog, 20 February 2014
Free Speech for Mann, But Not for Thee
Robert Tracinski, RealClearPolitics, 20 February 2014
Legacy-Seeking Politicians Preach the Gospel of Global Warming
Ron Arnold, Washington Examiner, 20 February 2014
Why Kerry Is Flat Wrong on Climate Change
Richard McNider & John Christy, Wall Street Journal, 19 February 2014
Who’s the Real Flat-Earther?
Marlo Lewis, GlobalWarming.org, 19 February 2014
Tom Steyer’s Hypocrisy
Alec Torres, National Review Online, 19 February 2014
Oil Is Where the Growth Is, So Let’s Drill
Diana Furchtgott-Roth, RealClearMarkets, 18 February 2014
EPA’s Wood-Burning Stove Ban Deals Blow to Rural Homes
Cheryl Chumley, Newsmax, 18 February 2014
[click to continue…]
In the News
The Martyrdom of Mark Steyn
James Delingpole, The Spectator, 14 February 2014
Green Energy’s Animal Killing Problem
Andrew Stiles, National Review Online, 14 February 2014
Putting an End to EPA’s ‘Secret Science’
Ron Arnold, Washington Examiner, 13 February 2014
President Obama, This is Your ‘Energy Moment’
Mark Perry, AEIdeas, 13 February 2014
Icy Blast Heats Up Coal Debate
Darius Dixon & Erica Martinson, Politico, 13 February 2014
Building on Quicksand: The Social Cost of Carbon
Kevin Dayaratna & David Kreutzer, The Foundry, 12 February 2014
CO2 Benefits Exceed Costs by…50:1, More?
Richard Bezdek & Paul Driessen, Master Resource, 11 February 2014
Obama’s Energy Policy Hurts African Poor
Bjorn Lomborg, USA Today, 8 February 2014
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