Comcast Decision May Thwart EPA CO2 Finding
On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had overstepped its statutory authority in attempting to regulate certain aspects of cable internet service, in a decision written by Judge David S. Tatel. In an earlier article, I wrote about the decision in terms of its impact on the FCC, which may be substantial. Anyone interested in that is invited to read that article. Here, I would like to address the broader implications of the decision on other administrative agencies, particularly the Environmental Protection Agency (EPA).
The decision provides critical guidance on how the D.C. Circuit may eventually rule on current efforts of the EPA to vastly expand its statutory authority over air quality standards. The D.C. Circuit has exclusive jurisdiction to entertain appeals from most FCC decisions as well as the decisions of most federal administrative agencies, including the EPA. The process bypasses intermediate proceedings at the Federal District Court level, and decisions by the D.C. Circuit can be appealed only to the Supreme Court. Nearly always, acceptance of such appeals is discretionary with the Supreme Court through the certiorari process. Very few petitions for grant of a writ of certiorari are granted.
The matters which the EPA are currently trying to resolve are potatoes currently too hot for the Congress to handle. Accordingly, the EPA apparently plans to rely on the Clean Water Act and ocean acidification data — as to the applicability of which there are serious questions. Also, according to Newsweek:
Unless Congress acts by next January, [EPA Administrator] Jackson says, the EPA will use its authority under America’s Clean Air Act to phase in new restrictions on carbon dioxide, the greenhouse gas that contributes to global climate change. The U.S. emits nearly a quarter of the world’s carbon dioxide; the EPA has identified it and five other greenhouse gases as a threat to public health. “The difference between this administration and the last is that we don’t believe we have an option to do nothing,” Jackson told NEWSWEEK. ….
The Nixon-era Clean Air Act was never intended to regulate a pollutant as pervasive as carbon. Both environmentalists and industry heads also acknowledge that Congress would be able to address the problem better. “The only thing everyone agrees on is that a regulatory approach would be more expensive and less effective than legislation,” says Paul Bledsoe, spokesman for the National Commission on Energy Policy, an arm of Washington’s Bipartisan Policy Center. But until Congress takes up the question, Obama holds the only key to sweeping carbon cuts.
If I read the Comcast case correctly, the rationale relied upon by the D.C. Circuit may prove very inconvenient for the EPA and may put a damper on its attempt to circumvent Congress. I strongly suspect that as I write this article, lawyers at the EPA are reading Judge Tatel’s Comcast decision and trying to decide how to evade avoid its implications.
Excellent legal analysis.
I am hoping this all gets straightened out soon. There are some deer in my neighbors yard that sometimes wander in to my yard. I watch them all day long chewing up browse and converting it into dangerous carbon dioxide. I am looking forward to asking the EPA who, me or my neighbor, are responsible for shooting the little bastards and helping save the planet.
EXCELLENT article Dan.
it is good to see that there still are good and honest people in the court system.
It really highlights the problems we face when an administration as corrupt as the present one is naming people to the courts.
I thought of that. The EPA is trying to levy taxes and enforce arbitrary tax levies. At some point that can hit the supreme court before the constitution is shredded. I can see the EPA try to request a factory to clean up it’s smoke stack. I can’t see a legal consent for the EPA to excise a preemptive tax to prevent CO2 emissions.
Will this taxation be equally applied to wildlife?
Dan,
You would be really interested to see the unbelievable behavior of the FTC in relation to the red flags rule. They have tried to expand their power to a massive level, based on a questionable reading of the law, so questionable that they were recently slapped down in the D.C. circuit in the case of the ABA v. the FTC.
If you write me at my email address (i assume the author of the post can read my email address even if the general public cannot), then i can share a copy of the case and explain what was going on. I think it is really worth some discussion and i don’t know why it doesn’t get more attention.
I have definitely gotten to the point that i believe that the obama administration just wants government in our lives on every little topic.
Dan – I think there is a much more fundamental problem: the abdication of Congress of its legislative authority; and now we begin to see the result: legislation by regulation. The regulator threatens Congress that if Congress doesn’t act as the regulator thinks it should, it will do so instead of Congress. If that is not an interference of the Executive Branch on the powers of the Legistlative Branch (and hence unconstitutional) I do not know what is.
Of course there is another minor problem: it is the whole matter: Climategate. The whole global warming hysteria which has been whipped up by “climate scientists” has turned out to be a fraud. Hence, what the EPA is threatening to do has nothing to do with improving our general welfare and everything to do with depriving us of our liberties.
Yer Honor, I object. That the EPA is a useless pawn, I stipulate; that ‘cap and trade’ is nonsensical, I agree.
But to ‘climategate’…by which I take the Honorable Oppostion to mean that human activity has no effect on the ecosphere, I take exception.
If a dissertation is required, I am just the “climate scientist” who will be happy to provide it.
I don’t doubt you are a “climate scientist”, but until mankind gets the technology to wreak havoc over a 1,200 mile radius, that can be seen from space and can spew ice chunks when it’s supposed to spewing lava/a>, I will not believe a word you guys say about mankind influencing the weather.
There was supposed to be a link, but here’s the link to a story on ABC on the impact of Iceland’s volcanic eruption:
http://news.yahoo.com/video/world-15749633/19179131
Excellent legal analysis of the Comcast ruling and how it could potentially apply to the EPA’s attempt to regulating carbon emissions. This is one of those cases where again the government attempts to oversteps its authority by relying on expressions of policy rather than actual law. This is akin to the government “making it up as it goes along”, in an allusion to the infamous words of Rep. Alcee Hastings. This is what happens when we give license to the federal government to “regulate” things in an attempt to make things “fair”.
While I do like the gist of this argument I have to point out a possible fly in the ointment. The Supreme Court in thier ignorance ruled Carbon Dioxide was dangerous to the environment/climate. The Court should never be used to rule on the validity or non-validity of any scientific issue and by doing so they over stepped thier charter. This decision, unless over turned will come back to haunt us all. It gives the unwanted and dangerous cover to allow any court on scientific issues which they have no expertise or inclanation to understand.
Right on, richb313. If you think government and religion is a dangerous mix, wait ’til you experience the government/junk-science cocktail. Eugenics, anyone?
Dan,
Been looking for you for the past several years, rember working with me and TDS, I still waiting for the oranges the guy was going to send us
Please contact me with your email address
Don Porter