Michigan v. Environmental Protection Agency

What's the return on investment on not having an asthma attack? If you can't count it, it doesn't count, according to the majority in this 5-4 ruling, which turned back EPA rules on mercury emissions from power plants. As a result, the power industry won't be burdened by those costly regulations, so you can breathe easy. LOL.

A podcast where we dissect and analyze the Supreme Court cases that have caused our liberties to dwindle, like our honeybee populations

0:00:00.4 S?: We'll hear argument this morning in case 1446, Michigan versus the Environmental Protection Agency and the consolidated cases.

0:00:11.0 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about a 2015 case called Michigan v. The Environmental Protection Agency. The majority holding, authored by Justice Scalia:

0:00:26.8 S?: Said that the EPA unreasonably interpreted the Clean Air Act when it regulated emissions at power plants without taking into account the cost to industry.

0:00:37.4 Leon: At issue in the case was the regulation of mercury emissions which result from power plants that burn coal and oil. The fossil fuel industry argued that the EPA's attempts to regulate mercury emissions were not appropriate, because the Agency didn't conduct a cost review before deciding regulations were necessary. The majority of the Court agreed with them, rolling back the EPA's attempt to regulate emissions.

0:01:00.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:08.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our liberty to dwindle like our honey bee populations. I am Peter. I'm here with Michael.

0:01:21.4 Michael: Hey, everybody.

0:01:21.5 Peter: And Rhiannon.

0:01:22.0 Rhiannon: Hello.

0:01:24.2 Michael: The bees, man, the disappearing bees. It's upsetting. They're so important to our ecology, right?

0:01:29.8 Peter: Yeah, yeah, they are. Everyone knows it, that they're important somehow. Don't entirely know why, but we need honey, I guess that's what... It's like the main thing.

0:01:40.3 Rhiannon: No, idiot, they pollinate plants.

0:01:46.2 Peter: People love honey and without it society falls apart.

0:01:51.1 Michael: What would Winnie-the-Pooh do?

0:01:53.8 Rhiannon: Yeah. The bears of the world would be depressed.

0:01:56.2 Peter: Today's case is Michigan v. EPA. This is a case about power plant emissions. The EPA, the Environmental Protection Agency, tried to pass some regulations to limit emissions as it is wont to do, and the Court had other plans, they stepped in. In a 5-4 decision written by Antonin Scalia, they struck the regulations down, claiming that the EPA should have considered the costs imposed on the power plants. So at a time when a functioning federal government willing and able to address environmental issues seems sort of important, this case highlights a crucial issue, the ways in which conservative courts are prepared to undermine the ability of federal agencies to create and enforce regulations. So we're gonna walk you through what happened here, what it means for the future of federal regulation, and give you a preview of the sort of legal issues you'll be debating while your children tread ocean water for decades on end. So Rhi, cover some context?

0:03:05.9 Rhiannon: Yeah, sure. Let's jump right in to the boiling waters. Let's start with a little piece of legislation I like to call the Clean Air Act. That's right, that's what I like to call it, 'cause that's what the law is called. The Clean Air Act was first enacted in 1963, and it is one of the first and biggest and most important modern environmental laws in the United States. Since its enactment, it's been amended many times to sort of modify the initial regulations that were promulgated and to add new ones as industry and car traffic and everything else about our stupid fucking dirty country keeps fucking up the environment even more, right?

0:03:48.1 Rhiannon: So today, the Clean Air Act sets out standards and regulations in a ton of important environmental areas. There are standards for ambient air quality in the US, regulation of polluter industries like fossil fuel plants. The EPA began a program for the control of acid rain. There's ozone layer protection, car emission standards, regulations on greenhouse gases, even the chemical makeup of gasoline, all of this is regulated by the Clean Air Act.

0:04:19.6 Michael: A lot of good stuff. And so, both Peter and Rhiannon have mentioned regulations several times already pretty early into the episode, and so we just wanted to give you a little background on what a regulation is. When Congress legislates, they pass laws, and those laws are signed into force by the Executive Branch. But from time to time, there are certain things that Congress deems may be something that needs updating that Congress can't itself be constantly responsible for, like for example, emission standards, that's something that should have the force of law behind it, but Congress can't be passing new emissions standards every year, it's all they would be doing, so they delegate that power to the Executive Branch, and those are called regulations, when the Executive Branch passes its own version of laws, these regulations, which have the force of law, but are coming from the White House, the Administration and not Congress.

0:05:20.9 Rhiannon: Yeah, exactly.

0:05:21.0 Peter: Right, they're filling in the blanks sort of on major pieces of legislation.

0:05:25.0 Rhiannon: That's right, and usually they have the power to do this because a major piece of legislation has delegated that power to them. So one example is the EPA, the Environmental Protection Agency. Now, the EPA is an executive agency of the federal government, and it was originally created in 1970 by executive order of one President Richard Nixon, heard of him?

0:05:47.6 Peter: He can do no wrong.

0:05:51.1 Michael: Not a crook. If there's one thing I know about Richard Nixon, he was not a crook.

0:05:54.9 Rhiannon: Not a crook, that's right. So quickly thereafter, after 1970 and the EPA is created, amendments to the Clean Air Act expanded that legislation and gave that regulatory and enforcement power for its provisions to the EPA. So you got Congress passing a law, you have the Executive administering the law, I mean, goddamn, what a beautiful system, right? Branches of government, they're working together. What could go wrong, I ask you?

0:06:22.0 Michael: Functioning federal government, can you imagine?

0:06:24.5 S43: That's right. Gorgeous and beautiful. Okay, so the EPA is developing these administrative regulations in order to carry out the mandate of the Clean Air Act. And one of the biggest mandates it's been given happens in 1990 when Congress amended the Clean Air Act to regulate dozens of new hazardous air pollutants that were being emitted from stationary sources, stationary sources like power plants. So in the 1990 amendment, Congress directed the EPA to study the effects of those hazardous pollutants from power plants on public health and to regulate the power plants if quote regulation is appropriate and necessary after considering the results of this study.

0:07:06.8 Peter: Right, so basically, Congress tells the EPA to evaluate this stuff in a study and then grants it the authority to do something about it if the need be, and the EPA conducts a study, determines that this stuff is dangerous and passes some regulations.

0:07:21.8 Rhiannon: So the EPA completed that study of public health, and at the end of it, it concluded that regulation of power plants powered by coal and oil was appropriate and necessary, because quote mercury and other hazardous air pollutants posed risks to human health and the environment. So importantly, at this stage, when the EPA was just looking at the results of the public health studies and deciding whether regulation was appropriate and necessary, they didn't take costs into account, but in the next stages of the process, after deciding that regulation was appropriate and necessary, the EPA did crunch the numbers.

0:07:58.7 Rhiannon: This is a years-long process in which cost and benefit and myriad other factors are taken into account as the EPA develops these standards and studies these industries to decide the best way to proceed. So at the end, the conclusion was that these necessary regulations to the power plants would cost those plants about $10 billion a year. So some power plants got mad and they sue, saying the EPA had exceeded its authority in the first place when it deemed that the regulations were appropriate and necessary. So that's how we have this case.

0:08:33.1 Peter: Yeah, okay, so let's recap. The Clean Air Act gives the EPA the authority to regulate power plant emissions as long as the regulation is quote appropriate and necessary. The EPA initiates a study to analyze the hazards of the emissions, and it turns out they're pretty dangerous, so the EPA issues some regulations limiting those emissions. Power plant industry members step in to challenge the regulation, and the Court, with a majority written by Antonin Scalia, sides with the power plants, believe it or not.

0:09:06.4 Rhiannon: Shocking.

0:09:07.5 Peter: What they say is that remember the EPA can only issue regulations that are appropriate and necessary, and they claim that the regulation is not appropriate because the EPA should have considered the cost of the regulation to the power plant companies, and they didn't consider that cost, at least not in the way that the Court would have liked.

0:09:29.7 Michael: You know, I'm listening to you talk, and all I can think is like when I'm going 90 miles in an hour in a 75 zone, the big thing I'm thinking is, has anybody thought about what it would cost me?

0:09:44.9 Rhiannon: That's right.

0:09:45.0 Michael: If I had to be 15 minutes late to something. I don't think those laws should really have any force until those costs are considered.

0:09:53.1 Peter: I agree.

0:09:53.1 Rhiannon: Take it to the Supreme Court, I think they'd be sympathetic to that kind of argument right now.

0:10:00.1 Peter: They'll love that. So there's a lot going on here. The Court is insisting that the proper definition of appropriate means the cost to the power plants must be factored in, as if the word appropriate has like a super clear definition under the law where you can take it and hold it up to the light, and you will see exactly how many tons of emissions the Environmental Protection Agency is allowed to regulate.

0:10:20.6 Michael: Zero.

0:10:21.8 Peter: There's something insanely funny to me about this whole thing. Like you're the EPA, a powerful federal agency, and you're at the Supreme Court, and they're telling you one of your regulations is not legal, and you're like, why? And they're like, well, it's inappropriate. It's inappropriate, like as if the Court is a stern father telling the EPA it can't go out dressed like that, like not appropriate, you'd better put some appropriate regulations on.

0:10:48.1 Michael: No more than two inches above your knee.

0:10:52.8 Peter: You cannot read this shit and tell me that the law is real. It's impossible.

0:10:57.4 Rhiannon: It's a fucking scam, dude.

0:10:58.1 Peter: And you have to give the power plant lawyers some credit here, they were like, it says that the regulation has to be appropriate and necessary, what if we said this is isn't appropriate? And they were like, yeah, and they took that to the Supreme Court and won. I mean, you've got to give them credit.

0:11:12.5 Rhiannon: And Antonin Scalia ate it right up.

0:11:15.3 Michael: Yeah.

0:11:15.3 Peter: And it gets a little bit worse because, as Rhiannon mentioned, the EPA did consider costs when it designed the regulation. When the EPA creates a regulation, there are multiple steps. At the first step, it's essentially deciding whether to regulate based solely on the negative environmental effects. In the next stages, where they determine the actual standards, that's where it factors in cost. So it's not true that the EPA is not factoring in cost, the only issue is that the Court thinks it needs to be done sooner.

0:11:48.3 Peter: And the reason for this is that at the first stage the EPA is basically committing itself to a certain baseline cost. So what the majority is saying is that factoring the cost after the first stage is too late. Antonin Scalia says, quote, by the EPA's logic, someone could decide whether it's appropriate to buy a Ferrari without thinking about cost, because he plans to think about costs later when deciding whether to upgrade the sound system. Master of logic, guys. I'm impressed how he marries a cavalier wit with impenetrable logical reasoning. That's why he's the king. That's why he's the king.

0:12:33.7 Peter: Look, this is a stupid analogy. I think that what he's trying to get at is just this basic idea that it doesn't make sense to factor in cost after you've essentially committed yourself to a purchase, and to drive that home he creates a completely fictional scenario where someone is buying a very expensive car, for some reason. The analogy completely falls apart on just...

0:12:56.2 Rhiannon: A cursory review, right.

0:12:57.0 Peter: Michael was pointing out in prep, the EPA's job is to pass these regulations, so what it's really like is if a guy's job was to buy expensive cars, and then he did that and factored in the cost a little bit later, that's closer to an accurate analogy. Kagan responds to this... Classic Kagan fashion, she's like, and actually, a better analogy is if someone bought a car and they realized that later they might need to get a new brake pad, and like it goes on, and I was like, God, it's classic Kagan because she is correct, but it's just like she's also somehow missing the point in like a broader way.

0:13:37.1 Peter: The thing is, EPA regulations provide like a real and material benefit. They are not just a cost, so they don't need to pin down precise costs and benefits at the first stage, they can go into something prepared to absorb a reasonable cost, knowing that they'll offset it with anticipated benefits, like you're allowed to imagine that the EPA is a functioning agency that isn't run by baby-brained morons who are just completely unaware of how to balance the costs and benefits of the very things that they are authorized to regulate.

0:14:12.3 Rhiannon: Right. And if you weren't a baby-brained fucking judge looking at this shit, you would be able to see that the cost and benefits are not necessarily measurable and quantifiable when you're talking about the environment. It's such a reductive sort of framework, it's such a reductive conversation to have on these terms, when cost and benefit can be quite abstract and long-term, right we're talking about generational benefits to air quality.

0:14:39.2 Michael: That's true.

0:14:39.9 Rhiannon: This is a really dumb way to approach the question of what is appropriate for the EPA to do here. First of all, the EPA has a duty to all of American society, the EPA is not accountable to power plants, the EPA is accountable to citizens, residents of the United States, and secondly, what the Court is doing here is kind of pitting the unquantifiable benefits to society of a better environment against the quantifiable costs incurred by power plants.

0:15:10.8 Michael: Yeah. You know, to continue on that point, just as a specific example, like a kid with asthma, how do you quantify that? So there are long-term health costs that you can monetize, but you can't monetize someone with severe asthma who can't go sleep over at a friend's house because they have to sleep with some fucking machine on their head and can't play sports and can't socialize and is maybe more at risk of dying in a pandemic later on in life. Like there's a certain level to this that it's like there's no way to fully capture.

0:15:47.0 Peter: Right. You can't quantify it.

0:15:49.9 Rhiannon: Absolutely.

0:15:50.7 Michael: Yeah, you can't.

0:15:52.2 Peter: No one's like, yeah, pollution's been high, so like the ROI on my kid has been super low, the kid sucks.

0:16:00.9 Michael: Right. And the other thing is like the purpose of the EPA, man, is to fucking save the environment. You know, like at a very basic level, it's not to mitigate damage to the fossil fuel industry, that's not like the EPA's job.

0:16:12.8 Rhiannon: That's right. They're not the accountants of PowerPoint.

0:16:15.8 Michael: Right. And what Scalia is doing here is basically saying that the EPA's job is to balance saving the environment against corporate profits in the fossil fuel industry. And where the fuck is that coming from? That's bullshit.

0:16:33.8 Peter: Well, if you look closely at the word appropriate, you'll see it.

0:16:36.5 Michael: Right. That's like straight ideology, is what that is. It is, it's smuggling in this pro-fossil fuel, pro-industry ideology to weaken the EPA's hand when it comes to making sure we have breathable air and a livable planet. It's fucking bullshit. I hate this guy so much, I hate him so much, guys.

0:17:05.7 Peter: Maybe the crux of all this is like whether or not you think the EPA should have considered cost at the early stage, the real numbers are this. The cost of the regulation, again, an estimated $9.6 billion per year. The benefits of the regulation were estimated by the EPA at $37 to $90 billion per year, so something like a four to nine time return on investment annually. Annually.

0:17:31.7 Rhiannon: Yeah, that's right. And Justice Kagan in dissent, she actually has a good rundown, I think, of the EPA's process, and at what stage they really did do a formal cost-benefit analysis. She cites it from the EPA studies that part of the benefit that is measurable, the EPA estimated that there would be 11,000 fewer premature deaths annually, along with a far greater number of avoided illness, stuff like lung disease, asthma, like Michael was saying earlier. And the first part of the EPA's mandate was conducting a public health study, that's what Congress directed it to do in 1990. It took almost a decade to complete that study, it was thorough, right.

0:18:16.8 Rhiannon: When they finished the public health study in 1998, they concluded that other regulations that were already in place were not effectively curbing the rise of emissions of these toxic and hazardous chemicals into the air, right. There had been already implementation of an acid rain prevention program, but still the EPA found that coal plants were on track to increase emissions of other hazardous air pollutants by 30% over the next decade. They found that power plants were the largest non-natural source of mercury emissions and talked about all of the negative health outcomes that comes from mercury and other chemical exposure in the air, right.

0:18:57.8 Rhiannon: The EPA found that exposure to high doses of mercury, for example, during pregnancy, caused children to exhibit, quote, a variety of developmental neurological abnormalities, including delayed walking and talking, altered muscles and cerebral palsy, end quote. So this cost and benefit thing, it was done, the EPA had analyzed this over the course of years, multiple decades, actually, by the time this case comes to the Supreme Court, and Scalia and the majority here are completely throwing aside this agency's expertise, the data, all of that analysis to say that they didn't consider cost at the beginning.

0:19:39.6 Peter: Right. Mercury is so dangerous that you're not even supposed to eat like two cans of tuna at once.

0:19:43.7 Rhiannon: Right, yeah, yeah. And these places are just pumping it into the air.

0:19:49.0 Peter: The entire framing by the majority is sort of like this regulatory agency run amok, like government spending out of control sort of vibe, where Scalia's like can you believe these liberal government morons are passing regulations without even thinking about the cost. And then like you find out the regulations are actually extremely efficient and totally sensible, and the human toll of the emissions is enormous. And one thing Scalia does is adopt the industry's position on what the actual benefits are. The industry is like, well, we calculated the benefits of the regulation at $6 million per year, keep in mind the lower estimate by the EPA was $37 billion, right? $37, I can't do the math, but we're by several orders of magnitude there... There's a big disconnect.

0:20:38.2 Peter: But Scalia just pops that shit in like it's the truth, and he's like, some estimates are that the benefits are $6 million, and it's like, yeah, some estimates by the fucking fossil fuel industry, you dumb motherfucker.

0:20:49.8 Rhiannon: By the coal plants.

0:20:51.8 Peter: The most certifiably lying-ist motherfuckers on the planet, it's like them and Philip Morris in terms of how can you possibly believe that they're representing the truth. And he just fucking puts it out there and like, yeah, dude, if the cost was $10 billion a year and the benefits were $6 million, you might have a point, but seeing as you have to absolutely swallow industry bullshit to believe that, it's fucking absurd. Like fucking crack open an old school thermometer with the mercury in it, and drink that and then come back and tell me it's 6 million fucking dollars a year.

0:21:28.9 Michael: Yeah, and the dissent tries to go into all the different ways the EPA does consider costs and blah, blah, blah, and Scalia responds at one point, he says, all in all, the dissent has shown at most that some elements of the regulatory scheme mitigate costs in limited ways. It has not shown that these elements ensure cost-effectiveness. And first of all, how the fuck did we go from they need to consider costs to be appropriate to it needs to be cost-effective to be appropriate. That's another step.

0:22:00.3 Peter: Antonin Scalia needs to think it's a good regulation, that's the standard.

0:22:02.0 Rhiannon: Right. Right, and since when is the Supreme Court again, like the cost effectiveness analysis for the federal government, like fuck off.

0:22:12.2 Michael: Right. And second of all, who gives a shit about cost-effectiveness? When we're talking about breathable air, we're talking about a livable planet, we're talking about whether there will be millions of climate refugees and whether there will be wars over disappearing resources, and whether the fucking bread basket will be a desert and whether Florida will be under water, and I do not give a shit if it's cost-effective to take measures to prevent or mitigate those outcomes. I think it's okay if we end up striking the balance a little bit on the cautious side on this one. Fucking assholes.

0:22:47.2 Peter: Like on top of all the weird bullshit he's doing, the pivot he does from being like they should have considered costs to sort of just weighing in on the merits of the regulation, there's something so fucking depraved here about the fact that we have to be institutionally, like the government and therefore the people, need to be concerned with the fossil fuel industry in particular. Like no, I believe that they need to be begging us for forgiveness for the rest of their existence, like that is what I believe the morally correct outcome should be, and here we are just fucking like handing them everything they ask for, they're like, well, this regulation means we make less money, and Scalia's like, don't worry, I got you. Fucking embarrassing.

0:23:35.1 Peter: We should situate this case in the broader conservative effort to undermine the administrative state. We've touched on this a bit before, but it's important to understanding exactly why conservatives are so keen on tinkering with the technical rules surrounding these federal agencies. First things first, what do we mean when we talk about the administrative state? What it's referring to is the various federal agencies that make up our government, which are technically within the Executive Branch, EPA, the FDA, Department of Defense, Department of Justice, Department of Labor, Departments of Interior, Agriculture, Education, Health and Human Services, on and on and on. There are literally hundreds.

0:24:14.4 Peter: There are a ton of rules governing how these agencies work, but in its absolute simplest form, and to sort of reiterate what Rhi said up top, Congress delegates, regulation authority to these agencies, who then have some discretion to create and issue regulations. The primary debate is about just how much discretion those agencies should have, hence cases like this where the sides are haggling over what exactly the EPA is allowed to do.

0:24:39.9 Peter: The conservative anti-administrative agency argument is that these agencies are big bureaucratic organizations that are not responsive enough to democratic processes, they're too siloed, essentially creating their own sort of branch of government. The other side of the argument is that these agencies are under the control of the President, they can be reined in by Congress if necessary, and they are essential to the function of the government. The far-right wing goes so far as to embrace the revival of an antiquated idea called the non-delegation doctrine, the idea that the Constitution functionally forbids Congress from delegating its authority to federal agencies.

0:25:18.4 Peter: That is a doctrine that if adopted in full would completely up-end the government, ruling huge amounts of governmental authority unconstitutional, and devastating the ability of government to pass regulations. The good news is that it's a completely lunatic fringe theory. The bad news is that when I say fringe, I mean it in a somewhat limited sense, because literally all six conservatives on the Court subscribe to it.

0:25:47.5 Michael: I don't know if all six buy the non-delegation, but a number of them do. Thomas and Gorsuch, right, we know those two.

0:25:55.7 Rhiannon: For sure.

0:25:56.3 Peter: Roberts signed on to that Gorsuch concurrence a couple of years ago, and Kavanaugh hinted at it last year. Amy Coney Barrett has not written about it or adopted a position on the Supreme Court, but I believe that people believe she is somewhat... I mean, it's important to realize that non-delegation is a spectrum, right? It's not a binary thing where you either abolish all delegation or you accept all of it, it's a spectrum, and I think it's safe to say that the conservatives are on, largely speaking, on a dangerous side of that spectrum.

0:26:25.7 Michael: Right, that's fair.

0:26:28.0 Peter: So obviously, at its core, this isn't about constitutional authority or whatever, like the real issue is that conservatives oppose regulations, and they want a reliable way to undermine regulations. When Trump was elected, Steve Bannon said one of his top priorities was, quote, deconstructing the administrative state. Is that because he's committed to a particular theory of constitutional power. No. No, it's because he's a right-wing freak and the right-wing freak stuff comes first, constitutional theories come second.

0:27:00.7 Michael: That's right.

0:27:00.7 Rhiannon: That's right, yeah. You know, looking over this case, I think just so closely, after covering Hamdi, I've been thinking a lot about how it's a complete juxtaposition here, the approach the Court has to executive authority in terms of the administrative state in this case, and how the Court is obviously opposed, versus the wide, the massive deference that the Supreme Court gives to the executive in wartime, over so-called wartime powers, war powers, national security, that kind of stuff.

0:27:34.5 Rhiannon: We've talked in previous cases, some of the worst decisions historically by the Supreme Court, I'm thinking about Hamdi, I'm thinking about Korematsu, right, those come because the Supreme Court is saying the Executive has this kind of unbridled massive power in this area. But you turn around and think about the very real national security threat that is imminent because of climate change, right, because of the environment, and in this area, the Court's like, no, the administrative state, executive power, we don't defer the same way.

0:28:10.4 Michael: Right. This isn't really in our purview, but still, look, we have supposedly the biggest, greatest, most powerful military that has ever been or ever will be, or whatever. And yeah, there are people who are actively trying to make the planet unlivable. We would be far better served like droning the people deforesting the Amazon than some poor schmucks in Yemen or whatever, right, like that would...

0:28:38.8 Peter: Theoretically yes, not an endorsement of the action of drone strike in strategic locations owned by the Cargill Corporation.

0:28:50.5 Rhiannon: Parity, parity.

0:28:53.9 Michael: I'm just advocating for a certain public policy.

0:28:56.4 Peter: That's true, that's true. It's not fair that we can't advocate for strategic military actions, but the right can.

0:29:03.4 Michael: That's right, and I think Jair Bolsonaro, there are a lot of good reasons to get rid of him, and protecting the rainforest is primary among them.

0:29:12.1 Peter: Yeah, that's why we support a coup in Brazil, and again, drone striking of Cargill operations.

0:29:19.6 Michael: Yeah, that's right.

0:29:21.7 Peter: After, of course, a congressional authorization of the use of military force.

0:29:24.4 Michael: Of course, of course.

0:29:26.1 Peter: You can officially keep that all in, Rachel. The congressional authorization really sealed the legality.

0:29:32.0 Rhiannon: Yeah, all above board. Coming off of Pam.

0:29:33.8 Peter: Coming off of Hamdi, I was thinking about Hamdi too, because Clarence Thomas writes the whole thing on Hamdi, a whole dissent about how we need to defer to military expertise.

0:29:41.0 Rhiannon: Right, right. Yes.

0:29:42.5 Peter: Serious thought here. Without any resources available to them, how many of the nine Justices in this case could actually tell you what mercury is, in any meaningful sense. My guess is not many, right. But of course, they don't defer to the EPA, right, 'cause they don't give a fuck about the EPA. I would anticipate some seriously bad cases on the scope of administrative power coming soon. You see it here with the Court limiting the EPA's discretion to weight costs and benefits, as if an administrative agency is not capable of independently doing that.

0:30:14.8 Peter: We've very recently seen OSHA regulations about the vaccine challenged, successfully at this point, at the Fifth Circuit, that in the coming weeks may well wind itself up to the Supreme Court and they will weigh in on OSHA's ability to regulate the workplace. This is a battlefield that is very dull and technical, but very important.

0:30:35.9 Michael: Yeah, absolutely. And when we talked to Senator Whitehouse last week, he mentioned Republicans trying to basically smuggle in the unpopular parts of their agenda through the courts, right, and I think this is a prime example of that, which is that generally speaking, people do like having breathable air and outside of a few economically depressed areas that are reliant on these industries for basically livelihoods, most people aren't huge fans of coal companies, or whatever.

0:31:10.3 Michael: This is not like a winning political stance for the Republican party, but this is something that they get to do sort of in the shadows too, it's not like a high profile Supreme Court case that gets all the headlines like abortion decisions do, or ObamaCare or whatever, right? Like this was the same year or a year after ObamaCare, ObamaCare decision, right? I forgot this case even existed, and I like follow this stuff pretty closely. It just doesn't have the same cultural salience, so they can get away with a lot here, it can get harder to control this stuff, and it's enraging.

0:31:48.4 Michael: Every time I think about this case, I just think about our utter failure as like a society to hold bad people accountable for doing bad things.

0:32:00.9 Peter: Right. And this opinion in particular is a manifestation of this very pervasive idea in American society that increased social spending is inherently naive, almost. We're in the midst of a political showdown over incredibly popular social programs like paid parental leave. And I think to conservatives, including conservative Democrats, your Joe Manchins and your Kyrsten Sinemas, it's just like common sense that you don't offer those sorts of social benefits without strings attached, despite the fact that nearly every other country, even as close to as wealthy as the United States does exactly that, this is like a parasite only found in the American brain.

0:32:40.5 Peter: Like the discussion of anything good being delivered upon the people must be met with a discussion of exactly why we're doing it and exactly how we're going to do it. Especially when it comes to super vague shit like the environment, right. Yeah, 'cause I kept thinking about if a threat is even a little bit abstracted, reactionaries will like not process and understand it. Like threats need to be cartoonishly simple for them to feel scared. Even the smallest amount of abstraction, which is like a virus, like everyone knows that bat viruses are and roughly how they work, and yet the reactionary base right now is just feeding at the trough of Covid pneumonia, essentially because they cannot see it.

0:33:31.7 Peter: There's something genuinely bizarre in the reactionary brain that can't process even a little bit of abstracted danger.

0:33:39.4 Michael: Yeah, I mean, I've seen a lot of times like the comparison with climate change to being like, well, what if a meteor were gonna crash into the Earth or whatever, but it's like if tomorrow NASA was like, yeah, there is an extinction level event, a meteor headed for Earth, and it's gonna get here in 40 years, yeah, I absolutely think conservatives would like not at all recognize that as a real threat. They'd just be like, well, first of all, how do you know, and why should we believe you? You could be wrong and, you know, it would immediately be like a politicized issue, it's insane.

0:34:18.3 Rhiannon: Yeah, and for all their, I don't know, cheerleading on American exceptionalism, there's such a sort of denial or ignorance about the things that actually are working and have gotten us to a place where your life as a Supreme Court Justice is really fucking great in the United States. So I'm thinking about in Shelby County, the VRA case where John Roberts is saying, we don't need... Basically, we don't need the Voting Rights Act anymore because racism in voting isn't a problem anymore, right, and Ruth Bader Ginsburg points out in her dissent, no, there's less racist voting laws because we have the Voting Rights Act, you fucking idiot.

0:35:01.3 Rhiannon: There's the same concept kind of going on here, that there is no contending in this opinion with the importance of the EPA's role and the importance of the work that the EPA has done since it was created in 1970, right, we do have more or less, we do have, compared to other countries in the world, we do have high air quality standards, we do have clean air. Like John Roberts, your kids didn't grow up playing in a toxic creek or whatever, that's because of the EPA. You can visit other countries without those kinds of federal environmental regulations, you can visit those countries right now, and smog, pollution in the air, terrible sort of respiratory illness in children, all of that stuff, and there's no sort of recognition at all that the EPA is doing important work, that the EPA's work works right?

0:35:54.3 Rhiannon: It does make our society better and we should be thinking about how to sort of support its effectiveness into the future as we meet this true existential threat in climate change.

0:36:04.3 Peter: Yeah.

0:36:06.1 Michael: Wrong. Scalia wants to support its effectiveness, its cost-effectiveness.

0:36:10.3 Rhiannon: That's right.

0:36:14.8 Peter: Oh, jeez.

0:36:16.7 Michael: I'm sorry, guys, I'm sorry.

0:36:19.1 Peter: Alright, we should probably talk like big picture about climate change for just a second, 'cause every podcast is obligated to. This sort of shit makes it comforting for people to be nihilistic about climate change, because both the scale of the problem and the obstacles in the way of any realistic solutions are so vast, and we're dealing with an opposition that when confronted with the prospect of personal sacrifice in the name of greater good is so obstinate and lacking in moral clarity that their political base is currently purposefully sucking a deadly virus into their own lungs out of pure spite.

0:36:58.4 Peter: So the question becomes, what can be done in the face of an amoral establishment and a reactionary demographic that is so thoroughly fucking stupid that they're willing to run full sprint into the arms of death at the behest of a series of Facebook memes. I think this moment calls for a bit of righteous belligerence on the part of both the public and lawmakers who are tasked with handling climate issues, and I think agencies like the EPA should be aggressive in their enforcement and be willing and prepared to face the Court head-on.

0:37:32.2 Peter: It's reasonable to think that in the coming years there will be climate initiatives that the Court tries to strike down in part or in full for one reason or another, and it's crucial that lawmakers don't bow to that pressure and don't accept the far right's conception of the administrative state. That means being aggressive with enforcement actions, and it may mean openly challenging the authority of the Court, but the stakes in the climate crisis are such that we can't be limited by the contours of traditional politics or worried about things like the institutional legitimacy of the Court or whatever.

0:38:05.4 Peter: If there's one area where history will forgive you, right, this is it. And that's important to highlight, mostly because you have to think about the organization and clarity of purpose and principled indignation necessary to address this crisis.

0:38:21.3 Michael: That's right. So since we're talking about just how brazen the industry was here with these bullshit arguments that like Scalia and the conservatives bought hook, line and sinker, it's worth noting some other brazen arguments that will be coming to a Supreme Court opinion near you soon enough, which is in, what is it? West Virginia v. EPA, which is a case this year, I'm sure we'll be covering it sometime soon, which basically says like CO2, that thing that's supposedly causing global warming, not a pollutant, actually, it might be pretty good.

0:38:58.7 Peter: Yeah, like the EPA is allowed to regulate pollutants but not CO2 because that's not a pollutant.

0:39:05.0 Michael: That's right.

0:39:06.6 Peter: That's the argument. Oh, shit, we are so fucked. In 2014, there was a climate summit and there was an agreement to halve deforestation by 2020. Naturally, that did not happen, and then there was a climate summit a couple of weeks ago, and there was another agreement to completely eliminate deforestation by 2030. And it reminded me of someone who owes you money being like, look, I don't have it right now, but next week I will have double what I owe and I'm gonna give you all of it. There's something so bizarre here and so fucking bleak.

0:39:45.5 Peter: And I think it's worth noting that administrative law, believe it or not, is going to be the primary weapon of conservatives when they fight off whatever attempt comes out of the Democrats to mitigate the damage of climate change. And I think it's just very fitting that the war over climate change, the most serious problem humanity has ever faced, is going to be fought in the realm of administrative law, the dumbest battlefield humanity has ever created.

0:40:15.4 Michael: That's right. The sign of a healthy and functioning political culture.

0:40:19.8 Peter: This is why I feel like people just don't like to talk about climate change 'cause it's just like, well, someone needs to do something, but I don't know. Like, the scale of it is just, it really is a meteor coming towards us, and some people are like, I can't see it. I think that's just a big star.

0:40:37.4 Michael: And you say it's not gonna do anything for 40 years, so I don't even have to think about it right now, and I'm sure in 20 years or something, somebody is gonna come up with some rocket or something, and then they'll deal with it, and whatever.

0:40:55.4 Rhiannon: Sucks.

0:41:02.3 Peter: Next week, premium episode. The nomination to the Supreme Court of Robert Bork.

0:41:09.8 Rhiannon: Drama.

0:41:10.7 Peter: Big thing in the '80s, he was nominated, turns out he was a big fucking weirdo and a freak, and he got voted down, and then the conservatives sort of destroyed the country as retaliation.

0:41:21.3 Rhiannon: That's right.

0:41:21.4 Peter: So if you want to hear us talk about Robert Bork next week, and all that comes with it, subscribe described to our Patreon, patreon.com/fivefourpod, all spelled out. Follow us on Twitter @fivefourpod, send us direct messages saying that we sound very smart and you like our podcast. We'll see you next week.

0:41:39.6 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:42:10.5 Peter: On a positive note, all of us are in our 30s, and I think that's a great age to be, because we're just gonna miss the worst of it, I think we're gonna miss the fire tornadoes. As we die of natural causes, we're gonna look out the window and see the first fire tornado and be like, this was a good time to die.