Ian Millheiser dedicated a post at ThinkProgress to a single quip made during six hours of oral argument in West Virginia v. EPA, not to confront the substance of the issue at hand, but to raise a collateral attack on the institution that will make an en banc ruling. It came from the mouth of Judge Thomas Griffith on the D.C. Circuit, and it was described as “A powerful judge’s subtle, chilling attack on a free press.”
What was Judge Griffith’s “chilling attack on the free press”? That it “was on NPR this morning. It’s big news!” Since punctuation doesn’t happen when someone says something aloud, Millheiser added the exclamation mark at the end.
The remark was uttered by Judge Thomas Griffith, a George W. Bush appointee to the United States Court of Appeals for the District of Columbia Circuit. And it reveals how a newly ascendant Supreme Court doctrine could have a chilling effect on journalists and other commentators who write about policy.
Beyond noting that Griffith was a Bush appointee, a slur of the worst order at ThinkProgress, Millheiser’s point was that if the media’s reporting could give rise to a ruling against his beliefs, because the doctrine at issue is Chevron deference, and if it is a matter of “economic and political significance,” then the court isn’t required to defer to the Environmental Protection Agency’s decision on the future of the planet.
Such a rule, however, has profound implications for how journalists themselves approach such issues. Take the anti-carbon pollution plan at issue in West Virginia. Journalists, opinion columnists, and other writers who agree with the coal companies’ opposition to EPA have a powerful incentive, under Judge Griffith’s standard, to give extra coverage to this case. Their mere decision to cover it, under Griffith’s NPR standard, makes it more likely that courts will hand down the result such writers prefer.
Well, yes and no. Aside from NPR not agreeing with the opposition, which includes but goes far beyond “coal companies,” Judge Griffith gave an example, not a standard. And it is a big-deal case, as reflected by Millheiser’s hysteria over this petty aside as well as the New York Times editorial on the case and a thousand other voices with a lot to say substantively about what the EPA has commanded the states to do.
The issues is huge, and the views are completely obvious, if you ask advocates, but for the fact that they’re diametrically opposed. They are so hugely important that this is a bet the planet decision as far as the EPA and its supporters are concerned. This is a “put a man on the moon” even though nobody has invented a rocket yet. This is a federal regulatory agency dictating the rules to a nation.
In eight years, President Obama has established a strong record in fighting climate change, including ambitious fuel efficiency standards aimed at reducing carbon dioxide emissions from cars and trucks.
But one very important part of his strategy remains in legal limbo — the Clean Power Plan, a rule created by the Environmental Protection Agency that would place strict limits on carbon dioxide emissions from coal- and gas-fired power plants and would force many of the dirtiest to shut down.
The issue is mired in controversy at every level, not that you would know that from the description.
The rule orders states to make big cuts in carbon dioxide emissions from power plants over the next 15 years, setting individual goals for each state while giving them considerable flexibility in how to get reach them. This framework is wholly consistent with the federal-state partnerships that for years have governed the nation’s environmental statutes.
If by partnership, they mean bureaucrats dictating what states must do, notably in the absence of any capability to accomplish it (that’s where the “considerable flexibility” comes in, as in “we don’t know or care how you make the numbers, just do it”).
The agency has therefore told the states that to meet their targets they must move “outside the fenceline” of existing power plants by, say, switching to cleaner fuels, investing in alternative forms of energy like wind and solar power and setting up cap-and-trade systems with other states. Opponents say this is a prime example of “executive overreach.” But this pragmatic strategy is entirely consistent with the Clean Air Act’s fundamental mandate to seek “the best system of emission reduction.”
But this is clean air. This is climate change. It’s not like a federal agency is ordering schools to let boys into the girls’ locker room. This is the future of our planet, and doesn’t that matter enough to address no matter what? Do it for the planet!
Regardless of views as to climate change and the end of life as we know it, whether from carbon emissions, the end of electricity or obscene sums of public monies expended on inventing that rocket to get a man on the moon, another issue is at stake here. If the “end justifies the means,” it won’t be worthy of mention. If not, then the question of a regulatory dictatorship looms large.
Like Millheiser, the New York Times spins it as evil political jockeying for world hegemony.
Of the court’s 10 judges, six are Democratic appointees, which gives the rule a good chance of surviving, as it should. Despite apocalyptic warnings from some of the opponents that the rule would destroy America’s energy system, it would in fact move that system in the same direction that the marketplace and modern technology are already driving it — toward cleaner energy alternatives, and away from the oldest and dirtiest fossil fuels.
Apocalyptic warnings abound from all sides, and each cries that the other is Chicken Little, their own apocalyptic warning being totally sound because they’re RIGHT!!! And perhaps they are. But does it depend on who nominated judges? Or, more to the point, does it depend on which side owns the regulatory regime at any given moment?
With a Democrat in the White House, and thus controlling the petty bureaucrats making decisions when Congress doesn’t do as the administration wants, each side will throw whatever they’ve got at each other, from a bizarrely attenuated free press argument to a facially disingenuous editorial, to achieve its goals. Should the sides flip after an election, they will swap positions and do the same.
Whether the ten judges in the en banc court will vote the will of a political party has yet to be seen, and whoever ends up on the losing end will scream of the blatant politicization of the judiciary, because it isn’t possible that a principled decision on the process by which huge decisions that will fundamentally alter our nation could be made by the courts. Aren’t we much better having them made by one side’s petty bureaucrats? After all, the answer is obvious.