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SCOTUS shoots down EPA mercury rule!

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  • #16
    The primary regulatory problem is that Congress has effectively created a self-empowering fourth branch of government over the past ~80 years. The latest SCOTUS decision on the EPA's Cross.State Air Pollution rule makes it very clear that only Congress can fix this problem. Regulatory agencies, like the EPA, have become unaccountable to any power other than the President. The Federal bureaucracy can often wield as much power as POTUS desires. This is antithetical to the form of government created by our Constitution.

    Facing a Hobson's Choice?

    The Constitutionality of the EPA's Administrative Compliance Order Enforcement Scheme

    Christopher M. Wynn, Candidate for J.D., Washington and Lee University School of Law, May 2006


    Under the Clean Air Act the EPA's administrative compliance orders (ACOs) are important enforcement tools used to enforce the Clean Air Act (CAA) and other environmental statutes. 1 It is clear why these informal agency actions have become the EPA's most commonly used enforcement device? ACOs may be issued with relatively little administrative process and do not require the EPA to go to court.3 An ACO serves to provide a regulated entity with notice that the EPA regards it as in violation of statutory or regulatory requirements, and it often requires the party to take or refrain from taking a particular action in order to comply with the applicable law.4 If the regulated party does not comply, the EPA may pursue judicial enforcement or administratively assess penalties. 5 Because disobeying an ACO is itself a separate violation of law over and above noncompliance with a particular provision of the Act, ACOs provide the agency with a powerful enforcement mechanism that requires a relatively modest expenditure of scarce agency resources.6 Moreover, until recently, the EPA could issue ACOs without triggering a right to pre-enforcement judicial review because courts had not viewed the orders as "final agency action."7 This gave the EPA added leverage to press regulated parties into compliance with the terms of the ACO, while retaining the discretion whether and when to seek enforcement.8From the regulated entity's perspective, however, being on the receiving end of an ACO can present a painful "Hobson's choice."9 The entity may disregard the order and risk accrual of civil and criminal penalties for either the underlying violation of the law or for violating the terms of an ACO.10 On the other hand, a party can comply with the ACO, often at enormous cost, and potentially forfeit the right to obtain judicial review of the factual or legal accuracy of the EPA's position. 11


    In order to understand the purpose of the ACO in its current incarnation, it will be useful to summarize the evolution of the CAA enforcement scheme. The CAA has undergone three major overhauls in its thirty-five year history with the most recent and comprehensive revisions coming in 1990.75


    75. Clean Air Act Amendments of 1990, Pub. L. No.1 01-549, 104 Stat. 2399 (1990); see Michael R. Barr, Introduction to the Clean Air Act: History, Perspective, and Direction for the Future, in THE CLEAN AIR ACT HANDBOOK 1, 2 (Robert J. Martineau, Jr. & David P. Novello eds., 2d ed. 2004) (noting that the major overhauls of the CAA were the an1endments of 1970, 1977, and 1990). The 1970 Amendments established a major federal regulatory role in air regulation for the first time. Id. at 5. The 1977 Amendments doubled the size of the CAA, and the 1990 Amendments doubled it again including exponential growth of the EPA's regulations. Id. at 2.

    Most pollutants are already at or near irreducible levels and almost all are well below the national standard; yet the EPA continues to ratchet down the standards, exponentially increasing compliance costs.

    NO2 and SO2 were already well below the national standard and declining *before * Maobama sent the EPA on an Enviromarxist jihad against American industry...

    SO2 was at, or very near, an irreducible level before Maobama's jihad against industry...

    PM2.5 (fine particulate matter) was already below the national standard and falling before Maobama's war on productivity...

    PM10 (coarse particulate matter) was way below the national standard and falling before Maobama's dictatorship of the proletariat ...

    The EPA says, "The annual standard for PM2.5 is met whenever the 3 year average of the annual mean PM2.5 concentrations for designated monitoring sites in an area is less than or equal to 15.0 µg/m3." The particulate matter pollution problem is not in the United States...

    Ozone (O3) pollution has also been declining for 30 years...

    Note that the National Standard for surface level ozone (O3) is ~0.07 parts per million. Ozone isn't a problem until it gets above 0.2 ppm...

    0.200 ppm
    Prolonged exposure of humans under occupational and experimental conditions produced no apparent ill effects. The threshold level at which nasal and throat irritation will result appears to be about 0.300 ppm.

    0.300 ppm
    The ozone level at which some sensitive species of plant life began to show signs of ozone effects.

    0.500 ppm
    The ozone level at which Los Angeles, California, declares its Smog Alert No. 1. Can cause nausea in some individuals. Extended exposure could cause lung edema (an abnormal accumulation of serous fluid in connective tissue or serous cavity). Enhances the susceptibility to respiratory infections.

    Lead (Pb) is generally considered to be one of the most toxic pollutants. Lead pollution dates back at least to Roman times. It appears that lead pollution peaked in the mid-20th century and have been dropping like a lead weight since the 1960's, totally ignoring the population "explosion" and the EPA (which did not commence its mischief until 1970). Lead levels are currently about where they were before the industrial revolution.

    Annual compliance costs are in millions of 2006 dollars.

    Pollution abatement follows a production (AKA diminishing returns) function. Each dollar spent removes less pollution than the previous dollar. The cost of compliance with the Clean Air Act is rising exponentially while the return in pollution abatement is asymptotically approaching zero...


    The gov't routinely exaggerates the supposed benefits of regulations, usually relying on unverifiable claims, such as, "Regulation X prevented 1,500 premature deaths." There is no way to test or verify a claim that things would have been worse if gov't didn't impose these real costs on your business. And the costs are very real.

    The EPA routinely uses asthma as a justification for new reg's. They claim the reg's will reduce the incidence of asthma. The EPA's own data show that atmospheric concentrations of SO2 and NO2 have been declining, while the CDC says that asthma diagnoses have been increasing over the last few decades.

    If the pollution abatement was reducing the incidence of asthma, why is the percentage of children being diagnozed with asthma risng?

    At times, the EPA will resort to totally [email protected] metrics like the “Social Cost of Carbon” when they can’t gin up any speculative health “benefits.”

    In this particular case, SCOTUS ruled that the EPA failed to properly weigh the costs of the new rule against the benefits.
    Watts Up With That? | The world's most viewed site on global warming and climate change.


    • #17
      Originally posted by The Doctor View Post
      Supreme Court deals blow to Obama's green agenda

      On the death penalty drugs they ruled it's ok for criminals to die a slow and painful death.

      In this case they ruled it's ok for everyone to die a slow and painful death.
      Nothing is easier than self-deceit. For what each man wishes, that he also believes to be true. Demosthenes.
      Against logic there is no armor like ignorance. Laurence J. Peter


      • #18
        Originally posted by Crash View Post
        On the death penalty drugs they ruled it's ok for criminals to die a slow and painful death.

        In this case they ruled it's ok for everyone to die a slow and painful death.
        As opposed to freezing to death in the dark.
        Watts Up With That? | The world's most viewed site on global warming and climate change.


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