Kavanaugh’s views on EPA’s climate authority

apo Via Twatter, at Skeptical ScienceKavanaugh’s views on EPA’s climate authority are dangerous and wrong. Naturally, I disagree: it's a form of survivorship bias: I wouldn't be bothering to post this if I agreed. Mostly this is a rehash of the EPA section from Ze Kavanaugh Kerfuffle, errm, with some minor additions.

The administrative state and Chevron deference

Chevron deference does not refer to deferring to Chevron as you might expect. Instead it's a doctrine in the application of US law, a legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers, generally in cases where the statute itself is ambiguous. All law requires interpretation, and not all decisions can be referred back to Congress or up to a court, so inevitably agencies are going to make some decisions in ambiguity, and it is reasonable that the courts don't second guess all those decisions. But there are limits; for example, Chevron allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not.

SS discuss this only in the context of GW, but that's too narrow a context. The growth of the Administrative State is something the Right hasn't liked for a while, and Chevron is part of that.

SS, and their source at the Natural Resources Defense Council, are sad that Kavanaugh doesn’t believe Chevron deference applies on issues of major importance. I think K's interpretation is plausible. The natural result of law-requires-interpretation is that agencies will indeed have to make countless minor interpretations; and smaller numbers of larger interpretations; but nonetheless the ultimate arbiters of law are the courts, not the agencies. So it is natural that major ambiguities will get punted up to courts. Those courts should show deference, in the sense of not trying to second-guess, but not in the sense of being over-reluctant to overturn agencies interpretations. Or, put another way, Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is “the best reading of an ambiguous statute” in favor of an agency’s construction. Brand X, supra, at 983. It thus wrests from Courts the ultimate interpretative authority to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive1.

Note that I say this as a general principle. It's important not to base your interpretation of law on knowing the answer you want in one particular case, and twisting all else to fit that.

Is Kavanaugh right?  You be the judge

Now, after the generalities, we return to the vexed question of interpreting the Clean Air Act. Unfortunately, I'm certainly not going to bother read the said act, and will have to rely on gleanings from elsewhere. For one view ("but of course it includes pollutants, and CO2 is a pollutant, so it covers CO2") see the aforementioned SS article. For the opposite, see my previous.

Without trawling through the details (because all this relies on interpretations; there is no definitive answer; so all details are merely clues for guidance) I offer two competing meta-arguments:

1. If Congress wanted a law about regulating CO2, it could just write one.
2. If Congress wanted to end the ambiguity in interpretation, it could just pass a law saying "the Clean Air Act should not be interpreted as regulating CO2".

A meta-meta-argument is that (2) would be much easier than (1). Another is that in supporting Chevron deference, folks like SS are certain that the current legislature would not write a Clean Air Act allowing regulation of CO2.

Alsup again

In a related context, Alsup decided While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The Court will stay its hand in favor of solutions by the legislative and executive branches. Naturally, whatever I say here has to be consistent with my general approval for that. And I think it is. In both cases, the answer should be, that in a case as important and distinctive as this, you need clear law, which has to come from the legislative branch.

Update: The New Yorker

On something of a side note, I find Defending Ruth Bader Ginsburg, and Other Distractions, at the Kavanaugh Hearings. I mention it because it's typical of the "gotcha" stuff I find so stupid and annoying:
I want to talk to you about President Trump’s attacks on the judiciary,” Senator Richard Blumenthal, Democrat of Connecticut, said to Brett Kavanaugh... Blumenthal read a few of Trump’s tweets, including one from July, 2016, in which he declared, “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!” The occasion—not that Trump needs one for his attacks—was a series of interviews in which Ruth Bader Ginsburg called Trump a “faker,” and said that she could not imagine him as President. If he were somehow elected, she said, the country might find that “everything is up for grabs.” The Notorious R.B.G. did not resign, but she conceded afterward that her remarks had been “ill-advised.” In the future, she said, she would be more “circumspect.”... Blumenthal asked Kavanaugh, “Do you think Justice Ginsburg has ‘embarrassed’ us all?”
The question is stupid. BK, nor any other sane nominee, will not criticse Trump, and he won't criticise Ginsburg. The only thing the question does (apart from wanky political point scoring) is test BK's ability to give a non-offensive answer. He passed, trivially.

Blumenthal compounds his offence by blatant lying: This is not political. This is about Justice Ginsburg. You will notice how all the people jumping up and down about BK lying are not in the slightest bit interest in Blumenthal lying.


1. Source: JUSTICE THOMAS, concurring, via Shunting Aside Chevron Deference by Jonathan H. Adler.


Arthur Pigou Warned of the Failures of Government.
* Michael Dorf argues for tit-for-tat, a great strategy for unthinking machines to play prisoners dilemma, but perhaps a touch unthinking even for pols.
* The NYers Understanding the Partisanship of Brett Kavanaugh’s Confirmation Hearings is decent.
My vices have abandoned me.


cit izen said...

3. If Congress wanted to end the ambiguity in interpretation, it could just pass a law saying "the Clean Air Act should be interpreted as regulating CO2". ?

Andy Mitchell said...

Personally, I would always err on the side on an interpretation that keeps us alive.

William Connolley said...

> should be interpreted as regulating CO2

That wouldn't end the ambiguity, because it wouldn't say what form the "regulation" should take.

> keeps us alive

We will all live, until we die.

Anonymous said...

Congress intentionally writes laws that are ambiguous, because Congress doesn't have the manpower or flexibility of the executive branch. In the case of the Clean Air Act, Congress wrote a regulation that stated that EPA should regulate pollutants, but left the definition of pollutant broad, and also the level at which the pollutant should be regulated. Note that the decision that CO2 falls under the definition of pollutant was NOT a Chevron deference argument, as the executive at that time (George W Bush) was actually trying to avoid regulation.

Now, once CO2 is defined as a pollutant, the Clean Air Act provides loose guidelines on how to craft a policy in order to regulate it. Generally, the courts allow executive branch action that isn't "arbitrary and capricious". I would argue that Chevron deference comes into play here not in the "should EPA regulate CO2" but rather, can EPA interpret the Clean Air Act to allow more flexible policy that goes "outside the fenceline" rather than specific only to the power plant in question.

(I don't think Skeptical Science is very clear on this distinction either)

William Connolley said...

> the decision that CO2 falls under the definition of pollutant was NOT a Chevron deference argument, as the executive at that time (George W Bush) was actually trying to avoid regulation

I don't know what you mean by that. Details? References? If you're trying to say that the exec said CO2 is a pollutant, then the obvious reply is that the exec can unsay it.

Rattus Norvegicus said...

William, the reference was to the US Supreme Court decision in Massachusetts v. EPA. This was a case of the SC saying that the states which brought the case were correct and that greenhouse gasses fell under the definition of pollutant.

William Connolley said...

Ah, that could have been clearer from our anon; thanks. M vs E. First (reading the wiki article) I'm struck by how crap Scalia and Roberts dissents are. Re-reading the SS article I'm now a bit confused, or rather see how it confused me before, because it appears to be saying the opposite. Also, the case SS quotes does indeed reference Chevron, but at no point does K do so.

Anonymous said...

Yes, sorry for the lack of clarity. Trying again:

Whether or not the EPA can control CO2 is not a Chevron deference case, because this was decided in Mass v. EPA when the Supremes sided with Massachusetts _against_ the executive.

The issue at hand with the Clean Power Plan was whether the EPA was allowed to regulate CO2 using flexible mechanisms that effectively set state-wide constraints rather than plant-by-plant limits. Some argue that the particular part of the Clean Air Act that applies has historically led to "inside-the-fenceline" limits where the EPA sets limits for emissions/MWh from a single plant. The obvious counterexample, the SO2 cap-and-trade program, was explicitly created by Congress, so it isn't clear that the EPA has authority to create flexible instruments (like cap and trade) (the Clean Power Plan wasn't cap and trade, but it was moving towards that end of the spectrum rather than plant-by-plant limits).


Anonymous said...

And to finish up: if the courts applied Chevron deference, they'd be more likely to accept EPA's explanation that the CPP fell within the bounds of the CAA.


Russell Seitz said...

Where does the White House Bible Study Group stand on Judge K's EPA views ?