Electricity in the New SCOTUS Season, Part 2 (edited)

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Michael Cain

Michael is a systems analyst, with a taste for obscure applied math. He's interested in energy supplies, the urban/rural divide, regional political differences in the US, and map-like things. Bicycling, and fencing (with swords, that is) act as stress relief.

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11 Responses

  1. Avatar PD Shaw
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    says:

    I think the scathing dissent in Massachusetts v. EPA had to do with the procedural issue of state standing. Under what circumstances can a state sue the federal government? Ann Althouse has said the opinion is the worst written that she has to teach and would consider it a person favor if it was overruled, which I didn’t interpret as having anything to do with the underlying energy issue.Report

    • Avatar Michael Cain in reply to PD Shaw
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      says:

      Indeed. If I were a professor teaching legal theory, I think I would agree with that. Certainly “the government is failing to use its authority to regulate the behavior of parties whose actions will probably hurt me badly twenty or fifty years down the road” fails most of the little that I know about standing. It opens an enormous can of worms. We know that over use of antibiotics in feed lots will probably produce resistant bacteria strains that can infect humans sometime down the road. We know that the federal government incurring a sufficiently large debt will probably result in a transfer of standard of living from future generations to the present.

      If you’re a judge who has decided to legislate from the bench, though, you have to relax the rules on standing in order to clear the way.Report

  2. Avatar Kolohe
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    says:

    “But what about CJ Roberts? He wrote an absolutely scathing dissent in Massachusetts”

    In the Massachusetts case, people were suing the federal government for *inaction*, making the case that the laws on the books *required* the EPA (i.e. the federal government) to do something. (which of course, the Bush Admin wasn’t)

    In this case, the people were suing the federal government for *taking* action.

    Though not having read the cases closely, so not knowing what the actual arguments are, the decisions Roberts’ made in both cases still could be consistent from the point of view of deference to federal executive authority and its prerogatives.Report

  3. Avatar Burt Likko
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    says:

    Your final paragraph is the most poignant to me, @michael-cain. While it’s easy to condemn kritocratic checks upon technocrats as anti-democratic, the fact of the matter is that Congress — at least, this Congress, and the Congresses that we have had for the past generation or so — does not make hard choices and has demonstrated functional disinterest in technically complex legislation.

    Moreover, there is a good argument that it’s better to defer the technically complex parts of issues to subject matter experts anyway, especially in spheres of governmental activity predicated upon science that may reasonably be anticipated to update, revision, and other kinds of change on short notice. Since it seems to take Congress six months, twenty irrelevant riders, a parliamentary procedure debate, and eight quorum calls to order a dozen pizzas for the interns, the regulatory process is probably the only way that rules get updated in response to changing conditions anyway. Let’s also not forget that the public has the opportunity for substantial input into regulations as they are proposed, revised, adopted, and subsequently reviewed and changed — and that the regulators themselves are indirectly responsive to democratic pressure since they are appointed by the President, or at least guided by Presidential appointees.

    In the particular case, does this case constitute a break from the knock against CJ Roberts that he always sides with the big corporations, or a nuance? Is there any validity to the proposition that Roberts thought that the position he staked out in EPA v. Massachusetts was the better one, but having lost that battle in the past, he’s accepted that the issue is now settled and he sees this case as nothing more than an application of the now-settled rule?Report

  4. Avatar Damon
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    says:

    “Congress — at least, this Congress, and the Congresses that we have had for the past generation or so — does not make hard choices and has demonstrated functional disinterest in technically complex legislation.”

    Ever think that that’s the WILL OF THE PEOPLE? That old adage that one party or the other is going to screw you but a divided do nothing congress won’t?

    ” Let’s also not forget that the public has the opportunity for substantial input into regulations as they are proposed, revised, adopted, and subsequently reviewed and changed — and that the regulators themselves are indirectly responsive to democratic pressure since they are appointed by the President, or at least guided by Presidential appointees.”

    BS. It’s the same as a “public meeting” in town. Only those gadflys of gov’t or those having a interest in the regulation being considered actually show up. Most everyone else doesn’t even know about it, nor can’t spend the time attending.Report

    • Avatar Burt Likko in reply to Damon
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      says:

      Acerbically articulated, but yes, this is the argument against technocracy, or at least substantial chunks of it.Report

      • Avatar Damon in reply to Burt Likko
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        says:

        No insult meant directly to you Burt. I find it offensive that “others” think they know better than me what I want. I find it more offensive that “others” think that with this alleged superior knowledge, they think they can tell me what I should have.Report

    • Avatar Jesse Ewiak in reply to Damon
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      says:

      Bluntly, if you can take a few hours out of your life to attend a public meeting about a regulation, that I guess it isn’t really that freedom destroying or a case of an unelected bureaucracy destroying America.Report

  5. Avatar Damon
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    says:

    Who said it was destroying america? I was simply saying that “the public has ample options to provide input” needs to be taken with a large grain of salt. This presumes 1) they are aware of the issue to be discussed, 2) the time is convenient, like not during the day of work, 3) they care about the relevant issue, etc.

    Frankly, I expect my employees to perform their duties at my convenience, not the other way around.Report

  6. Avatar Michael Cain
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    says:

    To The Powers That Be (TPTB):
    The content management pages don’t make it particularly clear about how the merely mortal writers should ask editorial policy questions, so… Of course the SCOTUS made their decision about the stay on the Clean Power Plan later the day that this post appeared. May I edit the post to reflect that? Are there standards for where the “notice” that I did that edit should appear?
    Thanks in advance,
    MeReport

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