Category: The Dish

Yesterday, SCOTUS issued a ruling on the EPA’s powers to regulate greenhouse gas emissions under the Clean Air Act, but nobody could seem to decide whether it was good or bad news for the agency:

The cases, led by Utility Air Regulatory Group v. the EPA, challenged the EPA’s authority to regulate greenhouse gasses from stationary sources (like coal plants.) The 5-4 decision — split along several lines — will effectively limit the EPA’s ability to regulate those gasses in some instances. However, it seems likely that the EPA will be able to find a way of maintaining those regulations even with today’s decision.

The mixed, complicated opinion is producing split results from the media, too. The New York Times’s quick take on the opinion proclaimed it a “victory” for “President Obama’s Environmental Protection Agency,” because it preserves most of the EPA’s tools and programs for regulating greenhouse gasses in stationary sources. However, because the court’s opinion rejects the way in which the EPA imposed those regulations in some instances, the decision produced a different lede over at Fox News: “the Supreme Court delivered a setback to the Environmental Protection Agency,” it begins. As experts comb through the details of the opinion, its likely that the reality lies somewhere in the middle.

Essentially, the court ruled that the law does not give the agency carte blanche to regulate greenhouse gas emissions but left it with a workaround that would allow it to continue doing so in most cases:

The high court ruled 5-4 that EPA may only require newly built or modified industrial pollution sources—such as power plants, refineries, and factories—to limit greenhouse gases if those same sources must already obtain permits for their so-called conventional pollutants. In practice, that means only a slight change in the number of big industrial polluters that would be captured by the existing, case-by-case greenhouse-gas permitting program at issue in the case decided Monday. The permitting program itself was not struck down.

The permitting program requires polluters to use so-called best available control technology, which for greenhouse gases has largely meant increased energy efficiency thus far, the Obama administration noted when defending the program before the Court in February. Limiting the program to facilities that must already get permits for their conventional pollutants (such as emissions that cause smog) addresses the sources of 83 percent of U.S. greenhouse-gas emissions from industrial polluters, compared with 86 percent without that restriction, according to the Obama administration.

At issue was whether the agency had overreached in “tailoring” the Clean Air Act to regulate CO2:

The statute calls for the EPA to regulate any source that emits more than 250 tons of the pollutant; most major sources of CO2 emit far more than that. In fact, under a strict regulatory approach, the EPA would have to issue permits to 6.1 million facilities (it currently regulates 15,000 under this provision). The administrative costs alone would jump by $21 billion. Since the EPA recognized this as unworkable, it set a much higher limit of 100,000 tons per year of carbon dioxide or an equivalently potent amount of another greenhouse gas. This “tailoring” approach to the distinct issue of greenhouse gases was then challenged in court by a variety of groups, from industry organizations to individual states.

Writing for the majority, Justice Antonin Scalia struck down the tailoring approach. The general argument is that if a statute produces absurd results—and even the EPA recognizes that the Clean Air Act does in this case—then an agency doesn’t gain the right to rework the statute in order to produce saner results. Left on its own, this portion of the ruling would be enough to throw out the EPA’s regulations.

Doug Kendall and Mei-Wah Lee call it “a 97% victory for the environment.” Their caveats:

First, the court’s willingness to find the Clean Air Act’s text of “any air pollutant” ambiguous — despite both the term’s capacious definition and its acceptance in Massachusetts v. EPA — will be cited by industry challengers as evidence that EPA’s authority is limited when it comes to regulating greenhouse gases. In effect, that would be an argument that greenhouse gases are somehow separate and unequal pollutants for purposes of the Clean Air Act. Massachusetts v. EPA makes it clear that this isn’t true, but some of the language in Scalia’s opinion may inspire other last-ditch efforts by industry groups to undermine the government’s authority to address the gravest environmental challenge of our time.

Second, in rejecting EPA’s attempt to keep faith with the act’s text and underlying purpose by adjusting the PSD program’s numerical threshold requirements, Scalia appears to define “reasonable” merely in terms of how much the interpretation would increase EPA’s regulatory authority — the more authority for the EPA, the less reasonable the interpretation (or, at least, so some challengers may argue). Again, industry will take heart in the limits drawn by Scalia’s decision and emphasize them in future cases.

For Jonathan Adler, the bottom line is that the “EPA can regulate, but it does not have free rein”:

The court made clear that it was not addressing any potential objections as to how the EPA decides to regulate stationary source emissions of GHGs going forward. On this the Court was explicit: “our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context.”

In upholding the EPA’ authority to require facilities already subject to regulation under the PSD program, the court seemed aware that regulating GHG emissions, and carbon dioxide emissions in particular, is different from regulating traditional pollutants and that the EPA may not have a free hand in controlling GHG emissions however it sees fit.  So, for instance, the EPA may be limited in its ability to force facilities to adopt energy efficiency improvements as a means of reducing GHG emissions.

Daniel Gross shrugs off the ruling, noting that the tide is already turning against carbon:

In Drum’s view, the real story here is about how the court views the power of executive agencies to interpret the law:

[T]oday’s ruling is a demonstration of something I’ve mentioned before: When an executive agency modifies the way it interprets a law, it’s a fairly routine affair. Interpretations of federal statutes, especially complex regulatory constructions, are notoriously difficult, and agencies do it all the time. There’s no presidential “lawlessness” or “tyranny” involved, and disputes over these interpretations are routinely resolved by courts. In this case, it was obviously a close call, since the decision was 5-4 and the opinion was long and dense. This is what’s likely to happen in other cases where the Obama administration has interpreted a law in ways that his critics don’t like. If the critics are serious, they’ll go to court, and in some cases they’ll win. In others, they’ll lose. Welcome to the 21st century.

Also picking up on that theme, Andrew Grossman looks ahead:

The Court’s decision may be a prelude of more to come. Since the Obama Administration issued its first round of greenhouse gas regulations, it has become even more aggressive in wielding executive power so as to circumvent the need to work with Congress on legislation. That includes recent actions on such issues as immigration, welfare reform, and drug enforcement. It also includes new regulations for greenhouse gas emissions by power plants, proposed just this month, that go beyond traditional plant-level controls to include regulation of electricity usage and demand—that is, to convert EPA into a nationwide electricity regulator.

Today’s decision—as well as one last month by the D.C. Circuit rejecting a nearly identical regulatory gambit by the Federal Energy Regulatory Commission—suggests that this won’t be the last court decision throwing out Obama Administration actions as incompatible with the law.

David Barron’s Office of Legal Counsel memo making the case for the drone strike that killed Anwar al-Awlaki in 2011 has been released, with lots of redactions of course. The memo touches on the major controversies surrounding the operation, including Awlaki’s due process rights, the risk of killing innocent civilians, and the CIA’s involvement. Scott Shackford provides the tl;dr version of what the release does and doesn’t tell us:

The Authorization to Use Military Force (AUMF) that gave us wars in Iraq and Afghanistan gave the administration permission to pursue and capture or kill members of Al Qaeda; Al-Awlaki was a member of Al Qaeda; therefore, killing was legal. Al-Awlaki’s Fourth Amendment right to due process is brought up toward the end. The Justice Department argues here that capturing Al-Awlaki was infeasible, yet he presented a threat to the United States as “continued” and “imminent,” therefore lethal force was justified.

What sort of continued and imminent threat did Al-Awlaki present from Yemen? Don’t know. That part is all redacted. The justification of why the CIA pursued this course of action is also almost entirely redacted. Even with the memo, we actually don’t learn anything new from a leak of a similar memo NBC published last year. We don’t know why Al-Awlaki was considered to be an imminent threat and why this drone strike was the only way the Obama administration believed it needed to deal with him.

Benjamin Wittes combs through the argument in more detail, but the redactions, as Wittes observes and as Serwer highlights here, leave some key points to the imagination:

The portion of the memo dealing with potential Fifth Amendment objections to targeting al-Awlaki remains heavily redacted, though the portion dealing with the Fourth Amendment is largely readable. Attorney General Eric Holder has argued publicly that ”The Constitution guarantees due process, not judicial process,” an argument later mocked by comedian Stephen Colbert, who deadpanned in response, “due process just means there’s a process that you do.”

“To my mind, the most controversial argument we’ve heard from the Administration was Attorney General Holder’s suggestion that due process is not a requirement of judicial process,” said Stephen Vladeck, a professor at American University’s Washington College of Law. “Presumably, that argument turns on the rigor and thoroughness of the internal Executive Branch decision-making that goes into ensuring that the target may legally be attacked, and that we’re absolutely sure the target is who we think it is. But the version of the memo disclosed today offers vanishingly little insight into these critical questions–leaving most of the presumably critical analysis blacked out behind redactions.”

Conor is particularly spooked at Barron’s contention that “a decision-maker could reasonably decide that the threat posed by al-Awlaki’s activities to United States persons is ‘continued’ and ‘imminent.’”:

This passage is alarming for two reasons:

1) It asserts that the executive branch can kill Americans in secret under the standard, “a decision-maker could reasonably decide…” Dick Cheney was “a decision-maker.” So was J. Edgar Hoover. Are we prepared to accept that 5th Amendment protections are null based on a relativistic standard as interpreted in secret by men like them?

2) The memo treats the representation that al-Awlaki posed an “imminent” threat as important. But unless it is hidden in a redaction, the memo does not address how “imminent” is defined, and there is good reason to believe that the Obama Administration has defined it so dubiously as to render the term meaningless. I explored this problem at greater length back on February 5, 2013, when Michael Isikoff published another memo that dealt with extrajudicial killings. It set, as a precondition of such killings, “an imminent threat of violent attack.”

David Kravets focuses on how the memo addresses the question of collateral damage:

“DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties would be disproportionate or that such a strike will in any other respect violate the laws of war,” according to the “memorandum for the attorney general.”

But that didn’t sit well with [Pardiss] Kebriaei. In a telephone interview, the Center For Constitutional Rights attorney said that “if you accept the idea of a global war and you can follow a target wherever he goes, there is a significant risk of harm to civilians in the area precisely because the laws of war do allow some collateral harm. It’s basically a huge risk of harm to ordinary people and civilians if you accept this premise which can be invoked by other countries.”

And Kevin Jon Heller picks apart the justification for letting the CIA carry out the assassination:

Is it really the case that the CIA is no less entitled to invoke the [public authority justification] than the DoD? There is at least one obvious difference between the two: because international law entitles only the members of a state’s regular armed forces to participate in hostilities, the CIA had no authority under international law to use armed force against al-Awlaki. The CIA is not part of the US’s regular armed forces. …

[T]he AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force. And, of course, the War Powers Resolution, which the AUMF specifically references, applies only to “the introduction of United States Armed Forces into hostilities.” How, then, can the AUMF provide the domestic authorization necessary for the PAJ to apply to the CIA? Nor is that all. The memo’s own cites strongly suggest that the PAJ applies only to the “lawful conduct of war” by the US’s regular armed forces

This doesn’t quite settle the matter for Drum, whose beef with the Awlaki affair was never the strike itself, “but with the fact that the targeting was based on such a flimsy legal pretext”. He blames Congress for not fixing the AUMF:

The AUMF is now more than a dozen years old, and it’s long past time for Congress to emerge from its fetal crouch and write a new law specifically designed for our present circumstances. Among other things, it should address the president’s ability to target American citizens for killing. If Congress wants to give the president that power, it should debate and pass a law and the courts should rule on its constitutionality. That’s the rule of law. And regardless of whether I liked the law, I’d accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional. Instead, as usual, Congress prefers to do nothing. This leaves them free to kibitz if they don’t like what the president is doing, or to simply avoid having to take a stand at all. It’s shameful.

On that, I think, we can all agree. And not just on this question either.

(Photo: Anwar Al-Awlaki at Dar al Hijrah Mosque on October 4 2001 in Falls Church, VA. By Tracy Woodward/The Washington Post via Getty Images.)

Sunday’s World Cup match between the US and Portugal ended with a last-second goal from Portugal’s Silvestre Varela that turned a 2-1 comeback victory for the US into a disappointing draw. John Cassidy describes the match as a teachable moment for American World Cup fans, evoking soccer’s peculiar mix of pride and deflation:

In the chichi French café where I had been watching the second half with my two young daughters, there were groans and howls of astonishment. Fifteen minutes earlier, when Dempsey scored, the joint had been rocking to chants of “U.S.A., U.S.A.” Now there was a dejected silence. I explained to my elder daughter, who earlier had colored in her own U.S. flag, that, no, Team U.S.A. hadn’t lost; and, no, it hadn’t been knocked out of the tournament. To the contrary, it had performed magnificently, and it still had a very good chance of qualifying for the final stages.

I didn’t bother explaining that the World Cup is like that: it builds you up and lets you down, warping your judgment.

Now that America has finally embraced this quadrennial exercise in fanatical but largely peaceful nationalism, our kids and their friends will have plenty of chances to experience it for themselves: the highs, the lows, and the bits in between. For that, surely, is the lasting message of Sunday’s game. Americans, like practically everybody else, have gone a little World Cup crazy.

Sophie Gilbert has a similar view, using the match to make the case that such sudden, unjust twists are part of what makes the sport exciting to watch:

Take a moment to consider the possibility that it might be more fun this way.

This might sound like the twistiest pretzel logic ever spun (and bear in mind that it’s coming from an England fan), but soccer wouldn’t be half as enjoyable without its extravagant pendulum shifts between beer-soaked elation and crushing agony. It’s profoundly, messily (or Messi-ly, depending on which team you root for) unfair. The U.S. side played with real fortitude in Manaus, not only proving itself to be eminently capable, but actually showing up the depleted Portuguese team. They should have won the game; thanks to some early sloppiness from Geoff Cameron and last minute fumbling from Bradley, they left it with one point instead of three. But doesn’t that make it more exciting?

As thrilled as Cassidy is that Americans are finally getting into the World Cup, Derek Thompson observes that this enthusiasm doesn’t extend to Major League Soccer:

The soccer evangelist says: The World Cup is nearly as popular as the World Series on television. The soccer skeptic says: … and in the 1,400 days between World Cup matches, everybody goes back to not watching soccer on TV.

There is good news for MLS investors and soccer fans. Average stadium attendance is way up in the last few years. Networks are desperate to break out soccer, because the audiences are young, the Hispanic population is growing, and the exclusive rights are dirt cheap compared to the NFL and NBA. But the reality is that nobody is watching American soccer outside the stadium (and few Americans are watching world-class matches in the Premier League on NBC). …

The World Cup is essentially a single-sport Summer Olympics introducing tens of millions of viewers to a thrilling contest in a sport they typically don’t care about. Unfortunately for America’s soccer fans, the vast majority of yesterday’s domestic viewers won’t watch another soccer game between August and 2018.

Previous Dish on Americans and soccer here, here, and here.

(Photo: The scene at Lonestar Bar and Grill, where Varela’s goal left U.S. fans stunned. By Alyssa Tanchajja.)

The State Department’s annual Trafficking in Persons report, which came out on Friday, bumped several countries into its lowest tier, including Thailand:

Thailand, Malaysia, and Venezuela’s status was automatically downgraded this year because they have been on a State Department human trafficking watch list for over four years and have not improved. Thailand is among the worst offenders, according to the State Department. … Though the Thai government reportedly paid a U.S. public relations firm $51,000 a month to help it boost its rating on the State Department report, the U.S. downgraded the country to the bottom tier, where it stands alongside 23 others including North Korea, Iran, Russia, China, Libya and Cuba. The 23 countries that were placed in the report’s lowest tier could face U.S. government sanctions on non-humanitarian, non-trade-related aid.

Joshua Kurlantzick is cheered that the Thai PR campaign failed:

[It’s] a particularly tough blow at a time when Thailand has just suffered a military coup and is facing penalties for the coup not only from the United States but also from Europe, Australia, and many other countries. Besides Thailand, other countries downgraded in the new report also had lobbied the administration hard, stressing not only that they were (allegedly) taking action against trafficking but also emphasizing their increasingly warm bilateral ties with the United States. Qatar, an important American partner which received a ranking slightly above that of Thailand, had pushed to be given a higher rating. This time, to its credit, the White House was not swayed.

For example, Thailand surely deserves to be placed among the Tier 3 nations, and should have been downgraded to Tier 3 years ago. In just the past year, the Thai navy has been implicated in the trafficking and outright murder of refugees fleeing Myanmar, Thailand’s seafood industry has been the subject of damning reports from nonprofit organizations and journalists revealing outright slavery in the industry, and in just the past two weeks over 100,000 Cambodian migrant workers in Thailand, many of whom worked under slave-like conditions, have fled the country in panic, fearing that the junta is going to arbitrarily detain and abuse them.

Keating highlights another angle:

The report is also worth considering in light of the World Cup. It specifically highlights the role that trafficked labor can play in the preparations for mega-events like the World Cup and the Olympics as well as the heightened risk of sex trafficking during the events themselves. Qatar, the 2022 World Cup host whose manipulative practices toward foreign laborers have recently become a topic of international interest, was downgraded this year to the “tier 2 watch list,” the second-lowest designation. Russia, the 2018 host, was downgraded to Tier 3 last year.

“There are many homosexuals, who neither desire nor are suited for homophile marriage, that ridicule what they call the “heterosexual” institution of marriage. This is only a clever twisting. Marriage is no more a strictly heterosexual social custom than are the social customs of birthday celebrations, funerals, house-warmings, or, for that matter, sleeping, eating, and the like. I participate in those, not because they are heterosexual or homosexual things, but because I am a human being. Being homosexual does not put one out of the human race. I am a human being, male and married to another male; not because I am aping heterosexuals, but because I have discovered that that is by far the most enjoyable way of life to me. And I think that’s also the reason heterosexual men and woman marry, though some people twist things around to make it appear they are merely following convention.

After all, there must be something to marriage, else what is the reason for its great popularity? Marriage is not anybody’s “convention”. It is a way of living and is equally good for homosexuals and heterosexuals.

I think it is high time the modern homophile movement started paying more attention to homophile marriage. … Homophile marriage is not only a strictly modern idea that proves our movement today is something new in history, it is the most stable, sensible, and ethical way to live for homophiles. Our homophile movement is going to have to face, sooner or later, the problem of adopting a standard of ethics. We have got to start laying the groundwork. I can’t think of a better way to begin than by pushing homophile marriage,” – Randy Lloyd, One magazine, June 1963.

It seems to me vital to appreciate that the idea of marriage equality goes back a long, long way. It was raised as a subject worthy of a cover-story in One magazine as early as August 1953 (see cover above to the left) – although, as Jim Burroway notes, at that point it was mainly to dismiss it as a reduction in human freedom. Ten years later, you have a somewhat “conservative” case for gay marriage – and its main audience are gay men and women who obviously oppose such an idea. And it’s hard to convey to people in their twenties that, for the longest time, the strongest opposition to marriage equality came from within the gay community itself.

No one believes me any more when I recall how unpopular it was among gays to support marriage equality in the 1980s and early 1990s. Jim Burroway rightly, I think, sees the AIDS epidemic as the turning point:

In 1970, Jack Baker and James McConnell tried to get married in Minneapolis (see May 18) and sued in state and federal court when their request for a license was denied. That ended with the U.S. Supreme Court refused to hear the case. Most gay rights groups at that time were caught up in the broader sexual revolution rhetoric, and had little interest in pushing for something as conventional as marriage. That attitude remained through the 1970s and the 1980s. But when AIDS hit the gay community in the 1980s and partners found themselves blocked by law and relatives from caring for and properly burying their partners and remaining in the homes that they shared together, it finally dawned on a lot of people that they really were married, regardless of whether they had thought of themselves and each other that way or not. And so here we are, a half-century later, and marriage is now at the forefront of the gay rights movement. And in just a few short years, we’ve already seen it expand in ways that Randy Lloyd probably never could begin to imagine.

Somehow, he managed to omit the vital role played by Ted Olson and David Boies.