Yesterday, I posted a song, Bonnie and Clyde, by the 60s French pop singer Serge Gainsbourg. For those unfamiliar with Gainsbourg's oeuvre, here's a mixtape of some of his songs recorded between 1959 and 1983. My personal favorite is Ford Mustang, which starts just after the 16:00-minute mark. A complete track list is published on the FACT website.
In response to last week's awful Supreme Court decision striking down the EPA's ability to regulate carbon emissions from power plants and thereby address climate change, the radical right has embraced the latest misleading talking point instead of considering the actual issue.
And it says a lot about the current conservative-controlled Supreme Court that I had to be so specific as to which awful decision I was referring. The overturn of Roe v Wade? No, not that one. Striking down New York City's 100-year-old ban on concealed weapons in public places? No, not that one either. The continued erosion of the wall separating church and state? No, all of those are terrible decisions which will make this beleaguered country that much shittier, but the specific one I'm talking about today is West Virginia v Environmental Protection Agency, the one that ruled, in essence, that the Environmental Protection Agency isn't allowed to protect the environment.
The EPA has been under attack by the right wing for years now, pretty much since its inception. That opposition has been funded, in no small measure, by the fossil-fuel industry and the Koch brothers using many of the same techniques, including many of the same specific lobbyists, that the tobacco industry once employed to make people think there was no harm in smoking. By deliberately blurring the lines between unregulated industrial discharges to air and water with individual, personal freedoms, they have attempted to make opposition to the EPA into a libertarian issue.
So never mind that West Virginia represents a major victory by big business in their decades long struggle to reduce their expenses by allowing harmful substances to be pumped into the air and water without restriction. Never mind that millions of dollars were spent by oil and gas, coal, and power interests on campaign contributions to those who nominated and confirmed the right-wing cabal of judges. No, that's not what the West Virginia ruling was all about, Republicans will tell you.
"We don't want unelected career bureaucrats making laws! Only Congress, the legislative branch, can write laws," they argue. "The SCOTUS ruling is simply affirming the Constitutional balance of powers by stopping executive branch agencies from writing their own laws."
Oh, bless your hearts! Were that it were that simple. As someone once said, all complex and difficult-to-understand problems have simple, straight-forward, and completely incorrect answers.
"No executive branch agency should be making any laws," they proclaim. "Not the EPA. Not the FCC, FAA, FDA, IRS, OSHA, or any alphabet-soup agency." Since virtually every regulatory agency is in the executive branch, which after all is charged with carrying out the laws created by the legislative branch, what they're calling for is what Steve Bannon once called "the deconstruction of the administrative state."
To be clear (for those of you who never took civics in high school), EPA or any "alphabet soup" agency doesn't create laws. Congress writes laws, and that process takes agreement of both the House and the Senate (no small feat there) and Presidential approval. Due to the complexities of the many issues involved, from understanding of financial systems to environmental science, many of the laws created by Congress require specific agencies staffed by technical experts to create standards and regulations on how those laws will be enacted.
For example, way back in 1970, Congress passed the Clean Air Act, saying that industries could not discharge pollutants or harmful substances to the air without a permit. The Clean Air Act also directed the newly formed EPA to create standards establishing the amount of emissions that the permits will allow, and how the permit process will be managed.
The EPA is not writing air-discharge laws, they are writing regulations and establishing standards as directed by Congress for those laws and acts created by Congress. While regulations may effectively have the same effect as laws, regulations don't have the same broad authority as laws and acts. The law written by Congress applies to everyone - no one can discharge pollutants to the air without a permit. The regulations created by the EPA apply only to those who seek a permit.
Those opposed to "unelected alphabet-soup agencies" still maintain, nonetheless, that only Congress should write these regulations, as elected representatives are accountable to the will of the people. Unelected bureaucrats don't have the same public accountability as those in Congress. It's undemocratic to allow career bureaucrats to write the laws, even if you call them "regulations."
Again, bless your uninformed hearts. There is accountability in the agencies, even if you don't understand how it works. The Administrator of the EPA, for instances, is appointed by the elected President and serves at the President's pleasure. If the President thinks the EPA is going too far, or not far enough, he or she can replace the Administrator with a new individual and a mandate to change direction. In addition to Executive Branch appointments, the EPA is subject to Congressional oversight and review. If Congress doesn't like what EPA has done, you better believe they'll call one of those hearings and reviews that you occasionally have seen televised on CSPAN, and direct the agency to more closely follow the mandate they were given.
And all of EPA's proposed regulations are first published for review and comment in the Federal Register, and if any segment of the public doesn't like the way their comments were addressed, there's always the option of lawsuits. New lawsuits or legal settlements are announced almost daily in the Federal Register. For christ's sake, what is West Virginia v Environmental Protection Agency if not a challenge to EPA by a state, a check on the regulations written by "unelected bureaucrats"?
And do you really want Congress writing these regulations? Really? Think about it - senators and representatives are more interested in getting reelected than anything else. They're not likely to write tough regulations unpopular in some sectors, or weak regulations unpopular in others. They'd most likely be paralyzed by an inability to balance those two pressures.
Should the acceptable level of lead in drinking water, for instance, be less than the current 15 ppm? If a congressperson agrees, industrial groups will protest, and campaign contributions from industry will disappear. Should it be greater than 15 ppm? If he or she agrees to that, they'll be confronted at their next Town Hall meeting by mothers of learning-disabled children, and branded as "child-killers" and accused of environmental racism in the press. Should they keep it at 15 ppm? If so, both groups will protest. There's no winning.
Besides, have you seen Congress? They can't even budget the money they already spent the previous year! They can't pass common-sense laws on gun control or reproductive rights despite overwhelming public support. Hell, I'm amazed that half of them can even find their own congressional office each morning, but I guess that's what aides are for.
Have you seen Louie Gohmert? Do you want him to develop the algorithm to determine the number of additional cancer deaths per one million people due to exposure to vinyl chloride in drinking water? Do you want Ron Johnson developing minimum sanitation and sterilization procedures for surgical equipment? Do you want Marjorie Taylor Green assigning and managing radio frequencies for air traffic control towers to incoming flights?
Now, I recognize that I've picked on all Republican representatives in the examples above. To be fair, Hank Johnson (D-GA) was concerned that the island of Guam was going to tip over and capsize from too many troops stationed there. Do you want him determining load-bearing capacities of four-lane bridges over Interstate Highways?
While some of those examples might be amusing to watch, I hope we can all agree that's not the best use of our "greatest and brightest" elected officials. So that leads us to today's problem. In the West Virginia ruling, SCOTUS said that Congress didn't explicitly authorize EPA to develop regulations on carbon emissions from power plants. At least the 1970 Clean Air Act didn't have those exact, precise words, just something about "harmful emissions from stationary and mobile sources." The court decreed that Congress either needs to write those rules themselves, or explicitly authorize EPA to do so.
Simple enough task on the face of it. Congress can either just agree to the regulations already written by EPA - it's all already there, written down on paper and everything - or they can amend the 1970 Clean Air Act to make sure it includes a reference to carbon emissions from power plants. Easy as pie. Easy as 1, 2, 3.
But way too difficult a task for this partisan Congress. The Republicans would be leery of anything that even resembles a recognition of the existence of a climate-change problem, and the Democrats would fight among themselves that the legislation is either too far reaching or not far-reaching enough. It's telling that no one is even seriously suggesting that Congress try to adopt the regulations or to amend the Clean Air Act. No one thinks them capable of that! This complex and difficult-to-understand problem has a simple, straight-forward, and impossible-to-implement solution.
The bottom line here is that the "unelected-bureaucrats-writing-laws" talking point is just a smoke screen for what's really happening here - the Court is continuing to fulfill decades-long efforts to abolish environmental regulations in order to increase the profit margin of big industries at the expense of the health and welfare of the planet. The Court knows full well that Congress can't and won't adopt the rules themselves, and the radical right-wing cabal of activist judges is seizing the opportunity to take America back to a time before the EPA and the 1970 Clean Air Act, just like they're trying to take us back to before 1973's Roe v Wade decision and to some imaginary 1950s prayer in public school timeline.
This will not end well for America.
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