US climate action, and democracy, at a tipping point

Coal_ZAH_smoke_LW-20140320233307179630-220The US Supreme Court has just given the finger to the EPA’s Clean Power Plan, with implications for US democracy as well as the planet.

When Obama realised he couldn’t get an emissions trading system through Congress he turned to the Environmental Protection Agency (EPA) to regulate CO2 as a pollutant, which it duly did. The first legal challenge was to the validity of CO2 as a pollutant capable of being regulated by the EPA. The Supreme Court ruled that it was.

Then twelve coal producing and consuming states mounted another challenge to the EPA’a ‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units’, or Clean Power Plan. This time they claimed that coal powered generation plants were already regulated by the states and hence the EPA’s regulation was illegal. Think Progress claims that the Clean Power Plan was the most significant thing ever done by the US to combat climate change, and when fully implemented in 2030 would “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.”

The Supreme Court has just put a stay on the plan while the case is considered. At a minimum that will delay the plan until June 2017.

The case for a stay was supported by 29 states, alleging “irreparable [economic] harm” from implementing the plan, whereas 18 states filed for the EPA.

The challenge is seen as an attack designed to disable the presidency, with implications beyond climate change. However, it is also being argued that a federal agency cannot do anything that will incur costs down the track. This argument goes beyond regulations by federal agencies to laws passed by Congress, calling into question the purpose of a federal government.

The stay order was resolved on ‘party’ lines at 5-4 which represents the judges appointed by Republican and Democrat presidents. In breaking news Antonin Scalia has just died, so the Reagan appointee will be replaced by Obama.

Of course a new Republican president would take about five minutes to knock off the Clean Power Plan. The EPA itself might not survive.

It seems the supreme court and the presidency are the only chances the Democrats have of gaining access to the levers of power. Through gerrymandering the Republicans have what looks like a permanent lock on the House of Representatives, and “The vast majority — 70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state — are in Republicans hands.” Only seven states have both a Democrat legislature and a Democrat governor, whereas 25 states are under unified Republican control. States administer electoral rolls and manage elections. All sorts of strategies are in play to ensure the vote come out the ‘right’ way. The Supreme Court has protected this undemocratic activity:

    If you don’t like gerrymandering, you should blame the Supreme Court. In the 2004 case Vieth v. Jubelirer, four conservative justices said that they would forbid federal courts from hearing challenges to partisan gerrymanders, and Justice Anthony Kennedy’s concurring opinion was only slightly less dismissive of these lawsuits. The result is that state lawmakers have been free to draw maps that entrench their party and lock out the other party, even though such maps violate voters’ First Amendment rights.

    The Supreme Court is also complicit in the wave of “curbs on voting rights” that Yglesias notes in his piece. In a party-line vote, a 5-4 Supreme Court gutted a key provision of the Voting Rights Act, enabling many voter ID laws, gerrymandered maps and other legislation that would have otherwise been blocked to go into effect. Similarly, the Court in Crawford v. Marion County Election Board effectively greenlighted Voter ID laws — one of the most common examples of state laws that exclude voters likely to support Democrats. The Court’s plurality opinion cited concerns about in-person voter fraud to justify this outcome, even though the opinion could only find one example of such fraud occurring in the United States within the preceding 140 years!

Change would have to begin with changing the Supreme Court. At present we have a Clinton appointment who is 83, a Reagan appointment who is 79 and a Clinton appointment who is 77.

The next US presidential election is important for the future of American democracy as well as the planet.

Meanwhile some states, Republican and Democrat, have active climate mitigation programs, but insofar as costs and the market remain the leading factor in the switch to renewables, coal and gas will linger longer.

And Obama has included $47 billions worth of climate proposals in his budget served up to the Republic deniers in Congress. Some proposals have already been declared “dead on arrival”.

20 thoughts on “US climate action, and democracy, at a tipping point”

  1. What stinks is that politicians can draw up laws that allow the judges to rule either way, if something is legal or not, depending on the judges political bias. And a politician picks the judges based on his bias.

    That’s not justice.

  2. That’s not justice.

    Do you have an alternative model?
    (I can’t come up with one that is at all practical.)

  3. Do you have an alternative model?

    I toyed with a Vatican conclave type set-up but O’Sullivan’s First Law is invoked.
    Sortition of qualified candidates perhaps ?

  4. Virginia’s Republican lawmakers admitted that they rigged the electoral boundaries to maintain their lopsided representation in Congress.

    President Obama won the state by three points, but Republicans still picked up 8 of the state’s 11 congressional districts under the GOP-friendly maps drawn by the state legislature.

    Undemocratic norms are becoming well-established in American society and law.

  5. Brian

    Undemocratic norms are becoming well-established in American society and law.

    Quite so. I heard on ABC radio ( fact check recommended ) that of the Appeals Judges, 80% are Dem.
    If it goes to the Fed and the result is 4-4 then the previous finding is upheld. ( read Dem win )
    To the Reps this is the same as another Dem HC Judge.
    Obama could appoint his wife and Dem voters would clap ecstatically and nod.

  6. When President Bush II left the White House in 2009, the 13 U.S. courts of appeal were firmly under Republican appointees’ control. Ten appeals courts had majority GOP judges, two were evenly split and only one had a majority of Democrats.

    Quote from The Washington Post.
    As Jumpy points out, how things have changed in only six years.
    It would appear to provide solid evidence for Brian’s comment re undemocratic norms.

  7. Let’s deal with this gem first:

    However, it is also being argued that a federal agency cannot do anything that will incur costs down the track.

    You cannot be serious! (thanks Mr McEnroe).

    US Army, US Marines, USAF, US Navy: disband immediately.
    Send all ICBMs to Army Surplus stores.
    Cease federal welfare programs.
    Cease federal taxation.

    Demand the governments of Viet Nam, Cambodia, Laos return any exploded or unexploded munitions that were purchased federally. Immediately.

    Demolish all highways, bridges, dams, etc. built outside the USA using USAID donations.

    Ditto infrastructure inside USA.

    Demand governments of Afghanistan, Iraq, Kuwait, Libya, Cuba, Lebanon, Japan, Germany, France, UK, North Korea, South Korea etc. return all exploded or unexploded munitions forthwith.

    All R&R leave in Kings Cross (retrospectively) cancelled.

    All Marshall Plan works in Europe, where feasible, to be destroyed forthwith.

    Awww Hell !!! Ain’t this fun?? All Federal wages, inc. servicewomens’ janitors’, Congresspersons’ to be repaid with interest.

    … and that’s just on the first day …..

  8. Brian

    55-45 to the Dems at present.

    I think she was talking about 10 of the 13 circuits being dominated by Dems, as your link states.

  9. I dunno Brian.
    It was a US National radio program that ABC broadcast in the pre-dawn hours sometime last week, I can’t find it.

    Perhaps the 3 judge panel is a factor. I’m not a legal expert but this lady was interviewed as though she was one.

    Anyway, some want all powerful, big Government controlling everything, fair or foul, when it’s their flavour.
    So they’ve got to except when its not.

  10. My best guess is that she may have been talking about appointments made since 2009.

    Republicans are now saying that the Scalia vacancy on the Supreme Court should be left until after the presidential election, which I think is preposterous.

  11. I think BarryO knows exactly who he wants and he’ll time the announcement with the Party nomination race in mind.
    Despite, or even because, his last 2 appointments have been women, I’ll put $5 on Sri Srinivasan

    And the fact that BarryO loves ” Firsts ” and Sri will be one.

    Whether or not Sri would call CO2 a pollutant, I don’t know.

  12. On the Democracy front, the rise in size and power of the ” Administrative level ” of Government that can make up Laws willy nilly, with no consultation with the citizens and zero answerability for the negative consequences is a greater threat.

    A non elected department official can change the definition of a word and previously law abiding folk instantly become criminals, that’s very dangerous.

  13. There are a number of things that contribute to the current US problem:
    1. Voting is not compulsory. Contributes to extremism and allows states to introduce “Jim Crow” laws and other lurks that discourage various groups from voting.
    2. Tolerates gerrymandering by the states.
    3. Doesn’t use preference voting. Means that many people cannot vote for their preferred party without losing their say in the main contest.
    4. Each state has the same number of senators. In practice this benefits the republicans because of their higher support in the smaller states.

  14. John, another issue in American ‘democracy’ is the way state votes contribute to electing a president. A majority in a state for a candidate means that the whole state goes to the winner.

    Americans are proud of their democracy, but they shouldn’t be. It really needs an overhaul.

  15. 4. Each state has the same number of senators. In practice this benefits the republicans because of their higher support in the smaller states.

    That’s a problem here too, but I never thought I’d hear a green admit it.
    Good on you John.

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