Kavanaugh's other dangerous assault - on the environment?

So says Michael Mann. Although that link is only to someone else reposting something Mann said, and annoying only "said" in the form of an image1.

Aanyway, the relevant case is I believe Mexichem Fluor, Inc. v. EPA. And since I took the trouble to find that out, and read some of the decision, I shall blog about it. You'll be unsurprised to learn that while MM's soundbite is mostly true, it elides a great deal of important detail. For example, just like the recent Alsup case, K was entirely happy to take all the GW science at it's word.

The actual judgement is here (or here). The argument, as in so many of these cases, is arcane and complex, hinging (sort of) on the meaning of the word "replace". It's worth pausing for a moment to think about this point: the higher courts don't hear simple cases where the answer is obvious to the lower courts; or indeed so obvious that it never comes to court. This kinda returns us to a point I was trying to make before: that if the legislature wanted to make these points beyond doubt it could. It could either explicitly give the EPA authority, or withhold it.


Quite some time ago, in 1990, section 612 of the Clean Air Act was passed, and requires manufacturers to replace ozone-depleting substances with safe substitutes. In fact that - although a quote from the judgement - is a slightly dodgy paraphrase; the exact rule is quoted later: To the maximum extent practicable, class I and class II substances shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment. What that adds to the paraphrase is "to the maximum extent practicable" - but that's not important, because no-one tried to contest that point - and using "reduce overall risks to human health and the environment" instead of the hard-to-interpret "safe". But as it happens, that didn't matter either, because K was entirely happy that HFCs could be called, colloquially, "unsafe", because they cause GW. Indeed, K was quite happy for the EPA to move HFCs from the "safe" list, where they had previously been (because they didn't deplete ozone) to the "unsafe" list (because further research had revealed they cause GW). Indeed, he's even happy that the EPA, in doing that, may prohibit anyone from replacing an ozone-depleting substance with HFCs2.


So what does that leave as a problem? The problem was that the EPA wanted to use that authority to oblige people using HFCs to replace them with something that doesn't deplete ozone, and doesn't cause GW; or at least not so much. However, the act appears to only give the EPA authority to force people to replace ozone-depleting substances; and HFCs aren't. Is this a bit Jesuitical? Yes, but that's the law for you. Is it a reasonable reading of the law? I think so; and of course on of the other two judges on the case concurred. Could one make a reasonable case for the opposite? Yeees, probably. Indeed the dissent (Wilkins) does so (page 26). Is this an example of K clearly being unreasonable? No.


As Hobbes puts it, concerning ambiguity in the law,
In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.
So it is pleasing to see K address this by referring to what the Senate considered, when writing the law:
The Senate’s version of the safe alternatives policy would have required the replacement not just of ozone-depleting substances, but also of substances that contribute to climate change. Id. sec. 702, §§ 503(8), 514(a). In other words, the Senate bill would have granted EPA authority to require the replacement of non-ozone depleting substances such as HFCs. But the Conference Committee did not accept the Senate’s version of Title VI. See H.R. Rep. No. 101-952, at 262 (1990) (Conf. Rep.). Instead, the Conference Committee adopted the House’s narrower focus on ozone-depleting substances. Id.; see S. 1630, 101st Cong. sec. 711, § 156(b) (as passed by House, May 23, 1990). In short, although Congress contemplated giving EPA broad authority under Title VI to regulate the replacement of substances that contribute to climate change, Congress ultimately declined.


There was a petition for a rehearing en banc4, that was simply denied; so it is appealed to the supreme court.


1. I can't find the quote via Google. Reverse image search says the image appeared in Mann's Twitter feed some time in 2017, and I have no reason to doubt it is his. The slightly odd "Secretary of Science and Environment" bit is from the Shadow Cabinet.

2. Although, as the judgement notes, this is probably unimportant, as it is unlikely if there is anyone left still using ozone-depleting substances. Update: ah no, That's not quite what it says: footnote 2 is: The parties disagree over whether, as a factual matter, any manufacturers still make products that use ozone-depleting substances. EPA says yes. Mexichem and Arkema say no. We need not resolve that factual dispute here, as it has no bearing on our legal analysis of the meaning of Section 612(c). 

3. Also note that "flying under the radar screen" is an odd way of putting it. The analogy is with a plane, flying underneath the radar beams. The "screen" is just the read-out from such a radar; a plane would not meaningfully fly under the operator's screen.

4. Which I'm guessing means "with a wider panel of judges", perhaps the "full court".

5. laws, when good, should be supreme; and that the magistrate or magistrates should regulate those matters only on which the laws are unable to speak with precision owing to the difficulty of any general principle embracing all particulars - Aristotle, Politics.


What Brett Kavanaugh on Supreme Court Could Mean for Climate Regulations
Schumpeterian Profits in the American Economy: Theory and Measurement – Yale economist William Nordhaus
* VIM cheatsheet; thanks Paul.
* Salon thinks we're about to exist under an oxymoron: Neoliberal fascism by Tim Worstall.
Climate change and compassion fatigue - ClimateSight.


PaulS said...

and HFCs aren't.

This would seem to argue otherwise, though I guess the question is then how powerful something needs to be at ozone depletion to qualify as an ozone depleting substance.

Although, as the judgement notes, this is probably unimportant, as it is unlikely if there is anyone left still using ozone-depleting substances.

There are plenty of weaker ozone depleting substances in common usage. There is also evidence of renewed emissions of banned substances, particularly CFC-11. The decline in atmospheric concentrations of that have slowed to a crawl in recent years.

Andy Mitchell said...

I am wondering what lucrative sinecure the Kochs will find for K's wife: the office decorator post is already taken.

William Connolley said...

> argue otherwise

It also post-dates the case, so couldn't have been considered. The effect is weak, and dynamic; and presumably any other GHG would do the same.

> There are plenty of weaker ozone depleting substances in common usage

And I thought there were various exemptions, for medical stuff. Looking again, the EPA and the Fluor disagreed on this point, and it wasn't resolved; see update.

> particularly CFC-11

But not in America, and not legally.

David B Benson said...

This comment is false.

David Appell said...

Yeah, but Americans don't give a shit about the environment. It always comes in last in the polls. Nobody votes for it. They're happy to drink lead-invested or coal ash- or pig shitty-water, if it gets them a couple more jobs in their county.

I'm pretty tired of pretending. I'm tired of the idiots voting. Nothing ever changes. I'm tired of hoping it might.

Andy Mitchell said...

The problem is not "Americans": the majority in any country can be pretty appalling without decent leadership. What has happened in America is that a very small number of billionaires have bought one political party and have rigged the system so that party wins despite everything it does. The problem in the US is down to a relatively small number of evil people.

I don't see any hope of that being corrected. What started as a attempt to obtain undue influence has progressed to what can now be seen as a major crime. Recent attempts to prosecute various entities over climate have achieved little except to convince those same billionaires that they will need to maintain an ever tighter grip on US politics to preserve their fortunes.

William Connolley said...

> attempts to prosecute various entities over climate have achieved littl

If you mean the Alsup case, then I think they failed because they were fundamentally misconceived. I see no reason for blaming Evil Bazillionairez.

> The problem in the US is down to a relatively small number of evil people.

I don't believe that. I think pretending it is all someone-elses-problem is a mistake.

Andy Mitchell said...

"If you mean the Alsup case, then I think they failed because they were fundamentally misconceived."

I don't dispute the fact they failed or why they failed. But this and other cases - the number of cases increase every year - indicate to the billionaires they need to protect themselves. The ultimate protection is to rig the Supreme Court. So now we have a SC Justice who can be shown to have lied during his Senate hearing, and not only does that not matter, its another reason why he was so attractive to them.

"I don't believe that. I think pretending it is all someone-elses-problem is a mistake"

With proper leadership the majority would accept action to combat CC is necessary. But, with a party corrupted by billionaire polluters, you have politicians declaring their belief in climate elves ("natural" forces so powerful they can change a planet's climate while remaining unknown to science) and the majority have their excuse to destroy their own children's futures.

The number of countries where CC denial has gotten a grip is very small. It is only present in where established interests (those billionaires) find it useful. In China it has no hold at all because nobody goes against the party line. In India it is absent because every significant political party will do whatever the fossil fuel industry wants.

Anonymous said...

I have not looked at the case carefully, and have no informed opinion therefore on its merits, but wanted to raise one point anyway regarding your statement:

"that if the legislature wanted to make these points beyond doubt it could. It could either explicitly give the EPA authority, or withhold it."

That argument could cut both ways. For example: if the legislature wanted to make it clear beyond doubt that HFCs were NOT covered, they could. So the question is - what is the role of the courts if Congress was ambiguous but the Executive was not? If the Executive does something that is explicitly contra to the legislation, the court should clearly strike it down. If the Executive is clearly within the bounds, the court should clearly do nothing (presuming the law itself is deemed constitutional). I'd probably lean towards the role of the courts in the grey area being to defer to the Executive, but I could see arguments either way (and of course, there are shades of grey...).


OnymousGuy said...

I find it difficult to reconcile this decision with Massachusetts v. EPA, which came to the opposite conclusion.

Phil Hays said...

Springtime for thugs.


William Connolley said...

> what is the role of the courts if Congress was ambiguous but the Executive was not?

That's the Chevron deference stuff; see e.g. here, from which "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".

> difficult to reconcile this decision with Massachusetts v. EPA

Massachusetts v. EPA was for CO2, so was interpreting a different part of the law, which was worded quite differently, so doesn't obviously need reconciliation with this decision.

> In other words, this liberal world order “is not...

But it does a poor job or articulating what is *is* a product of. Other than the familiar USAnian parcohialism.

Phil Hays said...

What Springsteen, Home Depot and a Nobel Winner Know: "short-term inefficiency can buy long-term viability"


"It helps to explain why real markets do not work as well as chalkboard models."


William Connolley said...

Interesting, but not obviously relevant. If you're arguing that people should be free to, e.g., price their concert tickets as they please, then I agree. If you're arguing that Springsteen has so much money that he hardly cares how much he makes out of a concert, then I agree with that too. If you're arguing that pricing the tickets low is not selfless and altruistic, then I am unsurprised. If you're arguing that markets are not perfectly rational, then I yawn.

OnymousGuy said...

William, CO2 is not mentioned in the clear air act (and neither are HFCs), I’ve looked, Both fall into the area where the EPA must regulate due to endangerment, and global warming was unquestionably weighing on the mind of the court in its 2007 ruling. My concerns remain. K is inconsistent AFAICT with Massachusetts v EPA.

Phil Hays said...

Educational, yes? Perhaps you might read old dead economic writing differently..

"But delegating our interdependent futures to mindless “market forces,” and their dumb coordination, isn’t always wise."



OTOH, you need one of these


Oh, after Brexit everything is going to be so fine...

William Connolley said...

> CO2 is not mentioned in the clear air act (and neither are HFCs)... area where the EPA must regulate due to endangerment

You're missing the point. MvE says the EPA has to regulate CO2 as a pollutant. But HFCs are not ozone-depleting, so can't be regulated under the parts of the CAA dealing with ozone depletion. They could, perhaps, be regulated under "parts dealing with CO2", so to speak, but that's not what the EPA tried to do. If you think this judgement and MvE are inconsistent, please say in exactly what way you think they are inconsistent.

> delegating our interdependent futures to mindless “market forces,”

This is kinda like what the ID folk say about evolution: "how can blind chance possibly evolve eyes?"

Arguments from evolution don't lead to govt. That isn't an argument against govt; just that these arguments aren't very useful to analyse the large scale structure of complex modern societies. Adam smith is more useful.

Brexit: currently shaping up to be stupid; best hope is staying-in-in-all-but-name, with a large amount of pointless friction. On the plus side, it is tying up a lot of the pols who have little time spare to f*ck anything else up.

Phil Hays said...

Behavioral economics and evolution help explain why people don't act the same as the economics and politics of Hayek predict. You don't find that at all interesting?

I don't see how Brexit was ever anything but stupid. The best hope has always been "staying-in-in-all-but-name".

Oh, and this:


Doesn't seem to be much grass roots opposition. Polls are close enough to suggest both pass and reject are possible.

How would you vote?

William Connolley said...

> the economics and politics of Hayek predict

Hayek predicts, correctly, that central planning will fail. Although this may be a post-diction. I can't think offhand of other predictions he makes; which are you thinking of?

Behavioral economics and evolution help explain how people react in small groups. I said this before, but you ignored me, so I'm not sure if saying the same thing again but more expansively will help much. Large complex modern societies - such as the one we want to live in, where we're largely free to make our own choices instead of being mindlessly forced to live as our fathers and their fathers did - involve different interactions to the ones we evolved in. To some extent evolution helps explain the atavistic longing people have for Ye Olde Dayes, and help explain the mistakes people constantly make in trying to somehow graft that onto a liberal society - or vice versa - but they don't really help in trying to "design" a framework for a complex society.

> Brexit was ever anything but stupid

You're not under the illusion that I support Brexit are you? You need to talk to someone like Timmy if you want to talk to Brexiteers.

William Connolley said...

See-also: Folk-Economic Beliefs: An Evolutionary Cognitive Model by Pascal Boyer and Michael Bang Petersen.

David Appell said...

OnymousGuy: I think the answer to your question is that (1) under Mass v EPA, the EPA is required to regulate GHGs only *if* they are found to endanger public health and welfare, which Obama's EPA did with its "endangerment finding," and (2) Kavanaugh found a way to ignore that.

Here's Kavanaugh's ruling -- pages 9-18 are particularly worth reading (or trying to read, as far as legal documents go). On p 18, Kavanaugh writes:

"However, EPA’s authority to regulate ozone-depleting
substances under Section 612 and other statutes does not give
EPA authority to order the replacement of substances that are
not ozone depleting but that contribute to climate change."

Earlier Kavanaugh makes a big deal about what the word "replace" means. AFAICT he rules it would be OK for the EPA to rule that the *replacement* for ozone-depleting substances could be regulated if they were also found (now or later) to be ozone-depleting, but *not* if they are not ozone-depleting but are greenhouse gases that trap heat.

Pretty tricky (hardly surprising). His ruling does seem to go against the spirit of Mass v EPA, but then lawyers (and judges) exist to find tricky ways around the spirit of laws.

It was actually a decision by 3 judges; Kavanaugh just wrote the majority decision. The ruling was 3-0 for part of it, and 2-1 for others.


Phil Hays said...

I was indeed under the illusion you had once supported Brexit. Perhaps due to your past frequent Timmy references...


As behavioral economics and liberal society, why is it that large scale society must ignore the actual behavior of people, again? And not just in small groups. This was behavior that evolved to make small group societies function. Much of it is still useful for large scale societies. Of course not all.

We don't have a large scale society of Homo economicus, after all.

Haven't you noticed that some of the support for a carbon tax is behavioral economic based?

Specifically, the "free-riding detection" part of behavioral economics. Even if a carbon tax isn't the best economic way to adjust to climate change and other side effects of rising CO2 levels... Some will back a carbon tax over any alternative plan, even if the alternative plan was better in every measurable way than a carbon tax.

William Connolley said...

> Apologies.

Thanks. I wrote Say no to Brexit to commit myself, beforehand; and just after.

> As behavioral economics and liberal society

Ah no hold on. It was you that mixed together BE and Ev. I said "To some extent evolution helps explain the atavistic longing...", carefully omitting BE. See also the B+P paper linked. Economics and politics of course must include how people actually behave (which is why Public Choice is unavoidable). The Ev perspective does help explain how people think. As the B+P paper says, it helps explain some common economic errors that are desperately persistent (like Merchantalism). It helps explain small-group dynamics, like families and rowing clubs and even individual workplaces. It's just not much help with large-scale societies.

Phil Hays said...

Free-riding detection is straight out of the B+P paper you linked. "These systems, for which there is independent evidence, include free-rider detection, ..."

Your support for a carbon tax makes a lot of sense... when viewed as free-rider detection and punishment.

BE and Ev are more linked that you seem to suggest.

Oh, and this was a great comment.


William Connolley said...

> Climate change is a human problem

I like to think of it as an ecological one too; the natural world has intrinsic value independent of people. As to the economics; I still think it's wrong.

Phil Hays said...

I've often wondered why carbon taxes seemed preferred by many, not just you. Thinking about this from a "free rider detection" point of view has been valuable to me to understand this.

Carbon release to the atmosphere econimically is an unmanaged commons problem". The std solutions are:
0) Leave as an unmanaged Commons
1) Provide an alternative to use of the Commons
2) Manage the Commons by some sort of laws/rules/regulations.
3) Convert Commons to private property (by some sort of cap and trade scheme)
4) Convert Commons to public/government property (by some sort of tax/fee)

Start with a field with flowers valued by the locals between two tiny villages. With tiny villages and little foot traffic (0) might be the best solution. As the villages grow, perhaps building a trail/road (1) to provide a way to reduce walking across the field and trampling the flowers. As the villages become towns, some rules about when walking on the field is acceptable might be required (2). As the towns become cities, converting ownership of this space into public and/or private property becomes perhaps necessary(3,4). (I stole this from somewhere, and forgot where. Certainly badly quoted.)

(Continued below)

Phil Hays said...

So what about the commons of the atmosphere?

(0) isn't reasonable anymore.

(1) would be to subsidize alternative technologies to get them past startup costs. Note that as in the above case (the road/trail), the alternative might not be profitable directly (yet), but still might be the cheapest way to prevent damage to the commons longer term. Or might have other advantages that make it better than using the commons. See https://en.wikipedia.org/wiki/Swanson's_law for a specific alternative (solar) or the more general https://en.wikipedia.org/wiki/Learning_curve and https://en.wikipedia.org/wiki/Experience_curve

Observe that it is at least possible that some combinations of technologies, once subsidized for long enough to get far enough down the learning curve, might mostly displace carbon fuels even without future taxes on carbon or subsidies for alternatives after some point in time. We can't know how far Swanson's law will continue to reduce solar cost, or how cheap future energy storage will become, such as batteries of various sorts.

2) might be a good solution in the far future, and for some greenhouse gases other than CO2. A punitive tax rate might blend this and (4).

(3,4) are more similar than different, the similar part is that ownership is claimed by the public/government, and then ownership is either transferred to private ownership or rented by private ownership. There are reasons to do both, or a combination of both. In many ways, private ownership or at least partial private ownership is a better economic path than centralized public ownership and planning. See Hayek and the failure of central planning.

So why is a carbon tax broadly preferred in politics? It isn't under std economics, and more expert driven governments seem to usually pick private ownership of carbon release rights based on economic analysis. But a tax might preferred be if we consider actual human behavioral economics, as has evolved in small societies.

"4.2. Detecting free-riders in collective action" from out of the B+P paper you linked (thanks!) is a good place to start.

Many people, perhaps even most people, have taken some tiny actions (such as riding the bicycle more or installing LED bulbs or turning down the thermostat) to reduce CO2 releases. And they might take more actions... if they could trust others to do similar actions. But they look around and both see and imagine others not taking similar actions. And not just locally, they hear of distant countries burning increasing amounts of carbon fuels. They see all of these examples as "free riders", even though their own actions are not all that different. There is a strong evolutionary history for the need of punishment of "free riders" when collective action is called for. A carbon tax fits that need for punishment or discouragement of free riders, even if not even close to being large enough to match the damage, aka the ideal Pigovian tax rate. Cap and trade plans do not fit that need. Subsidies for alternatives do not fit that need.

William Connolley said...

> unmanaged commons

Note that there is no such thing. This is largely a semantic quibble, because "commons" in the Olde English sense implies some management structure. Wiki's tragedy-of-the-commons article makes this point in para 2.

This quibble is about as useful as complaining that the "greenhouse effect" is not what warms greenhouses, but I thought I'd mention it, since it can influence one's thinking.

William Connolley said...

Another thing to consider is what has happened to English commons. I grew up in Berkhamstead which had - on the hills above it - a lovely area of woodland and bracken called "the common", which had been preserved from enclosure by the Battle of Berkhamsted Common. But it isn't really a common any more; its just an area of publically accessible woodland. The fate of most other commons was to be enclosed, which roughly corresponds to your option (3): all holders of commoners rights in theory got a portion of land equal to their "fair share", but in practice ways were found to fob them off with small amounts of money; or perhaps that's too harsh; see-also wiki.

The lesson one might take from that is that "commons" can become redundant, and an obstacle.

William Connolley said...

> carbon tax broadly preferred in politics? It isn't under std economics

I'm dubious that a carbon tax is broadly preferred. What measure are you using? If going by emissions-weighted, then I'd say that the most broadly preferred option is to do nothing, followed by cap-n-trade, since the ETS is this, and my guess is that the ETS is larger than other schemes.

I'm also dubious that std econ prefers something other than a CT. Also, it must have been obvious to you that I'd say this. So why not short-circuit the exchange by providing your ref up front?

Phil Hays said...

"I'm dubious that a carbon tax is broadly preferred. What measure are you using?"

Purely local. Number of initiatives that have collected enough signatures to show up on the Washington State ballot. So far 2 carbon tax : 0 cap and trade. There have also been attempts to pass both carbon taxes and cap/trade through the legislature. The only ones that might have had a chance were carbon tax plans.

Carbon pricing schemes, largest isn't the ETS, but China's. Larger than the rest of the carbon pricing systems combined.

Notice, however, that exactly zero politics is involved. President Xi decides. That's it.

Russell Seitz said...

" exactly zero politics is involved. President Xi decides. That's it."

Perhaps we should wait for Secretary Mann and Attorney Generallisimo Tribe to weigh in -


William Connolley said...

> largest isn't the ETS, but China's

China is large, but does it actually have a scheme? This tells me "China will spend a year building a national reporting system and another conducting “simulated” trading and analysis, pushing actual implementation to at least 2020". There is, of course, more wrong with it than that; see the link.

Phil Hays said...

Half empty or half full?

"Indeed, given the aggressive rollout of renewables, reductions in coal use, and other steps, China may already be on track to beat that deadline. (their Paris commitment of reaching peak emissions by 2030)"

The key element is unknown. What exactly does President Xi really really want?

Pretty reports to send to the outside world? In which case this all doesn't really matter.

Or real reductions in CO2? In which case this puts real pressure on power systems managers today.

They have to guess.

Better guess correctly. Or might end up at re-education farm shoveling pig shit. The letter of the law doesn't matter. The will of the ruler does. The nature of non-democratic governments.

Brian Schmidt said...

"the higher courts don't hear simple cases where the answer is obvious to the lower courts; or indeed so obvious that it never comes to court."

For American courts, the second half of the above is mostly true. There are some advantages in litigating though even if you have almost no chance of winning, especially if you're rich or gain some advantage in delay. Polluting industries fighting regulation are a classic example of this (not the only one).

The first half is true as to state and the federal supreme courts but is mostly not correct as to appellate courts, which pretty much have to hear all appeals (they could theoretically sanction a frivolous appeal but that is rarely done, even among the frivolous appeals).