West Virginia v EPA: Part II – Roberts Puts a Band-Aid on the Regulatory State

To put the Supreme Court decision in West Virginia v. EPA into perspective, one needs to understand the constitutional issues with the regulatory state, as well as progressive efforts to alter our nation based on a claim that catastrophic, human-caused global warming is imminent.  Part I of this series of posts dealt with the regulatory state growing like a cancer on our constitutional system. This post, Part II, deals with the genesis of the global warming juggernaut and how a progressive president, despite Congress’s refusal to approve such a plan, came to treat carbon as an air pollutant and then adopt the Clean Power Plan in mitigation.  Part III will analyze the decision itself in West Virginia v. EPA.

I.  The EPA and the Clean Air Act

Congress passed the Clean Air Act in 1963, codified at 42 U.S.C. Chapter 85.  The Act addressed localized problems of air pollution within the United States.  In 1970, the act was amended and Congress created the Environmental Protection Agency (EPA) to enforce the act.  Thereafter, the act was used to combat actual air pollutants, from lead to sulpher dioxide and much more, the inhalation of which was toxic or which, alone or in combination, directly harmed the environment.  No thought was given to classifying water-vapor or carbon dioxide, or any other “greenhouse gas,” as pollutants in  1963, nor in 1970, nor for the thirty years following.

II.  The global-warming movement 1980 — 2015

In 2015, I covered many of the issues with the global warming movement here. Little has changed.  What follows below is a brief summary.

The corrupt socialist, Maurice Strong, advanced the global warming movement through the UN, culminating in UN creating the IPCC in 1988.  The IPCC was created — and to this day still operates — with a mission solely focused on “human-induced climate change.”  In other words, the IPCC assumes as”received wisdom” that humans are the cause of climate change, and the IPCC has only allowed “science” to proceed from that assumption.

With its mission based on a non-falsifiable assumption, the IPCC into a quasi-religious body from the start because the belief that a fact is non-falsifiable is an act of faith, not science.   And almost from day one, as Michael Crichton astutely observed in 2003, this became the new religion of Marxists and progressives.  Only in this new religion, government, not God, promised salvation. According to its many proponents, it became the greatest moral good — the Green Rule, if you will — to sacrifice the wealth and freedom of the masses to “mitigate” global warming.  This Green Rule has supplanted Christianity’s Golden Rule and the Constitution.

Coming almost simultaneously with the fall of the Soviet Union and a dagger in the heart of the dream of global communism, Marxists world-wide — including their American counter-part, progressives — wholly embraced the global-warming movement, and with good reason.  If you control carbon, you control a gas necessary for life and one produced from the vast majority of the energy that powers all of modern civilization.  There is no limit on what you can regulate.  And if you can convince the population that the threat of global warming is imminent and catastrophic, then there is moral justification to simply do away with or ignore the pesky constitutional restrictions that limit the U.S. government’s ability to impose its will on the American people. 

This is why so many global warming ideologues call for an end to constitutional government in America and an embrace of autocracy.  And that belief animates all of those, including the progressive Supreme Court justices, who today decry the decision in West Virginia v. EPA.    

Lastly, it bears pointing out that, if the threat of global warming is imminent and catastrophic, and fighting it is the highest moral good, then not only is there no human activity that you can’t control, but there is also no amount of wealth too large to siphon off the economy of nation-states, whether to fund climate reparations per the Paris Accords or to fund the whole panoply of boondoggles that Marxists and progressives run to “mitigate climate change.”  After all, Al Gore didn’t go in a decade from a net worth of a few million dollars to hundreds of millions without sitting at the global-warming mitigation trough. 

Lastly, the production of CO2 is a global phenomenon.  It includes not merely the ever-declining amount of CO2 the United States pushes into the air but also the ever-increasing amount of CO2 being pushed into the air by developing nations, including the primary driver of CO2 today, China (2x the U.S.).  This, the greens say, is justification for a movement toward one-world government. Put another way — the canard of catastrophic and imminent human-caused climate change is a license to redistribute the wealth of our nation and a license to impose upon us dictatorial rule.  That is a win-win for progressives and Marxists the world over.

We did not get to the point of general acceptance of “human-induced climate change” through the practice of science rigidly conforming to the scientific method. On the contrary, we have had forty years of Lysenkoism in America, much of it exposed a decade ago in Climategate (see here and the links at the bottom of that post), where virtually the only science allowed to be published in any major journal or funded by government was that which advanced the canard of human-caused global warming through producing carbon. No untenured scientist dared contest the narrative.  The media was enlisted to silence dissenting voices, and ideologues acted as gatekeepers for the major scientific journals, ensuring that not a dissenting voice was printed therein.  The government employees charged with maintaining our temperature records were themselves activists who had, over the past three decades, repeatedly altered the records to make the past appear cooler and the present appear red hot.     

Bottom line: The climate-change juggernaut that Maurice Strong unleashed suffers from the exact same problems of accuracy, honesty, veracity, and fantasy suffered by any one-sided narrative created without dissenting voices.  Climate science in the U.S. has been one long trial in a kangaroo court where no due process of law is allowed.  It is a complete bastardization of science.  In essence, the climate-change juggernaut has been one very long January 6 Commission, and every bit as trustworthy.   

It is not an overstatement to say that, if the same legal standards for criminal fraud that we apply to securities dealers were applied to many of the climate hucksters, a significant portion of them would be in prison.  Hide the decline indeed.

III.  The Supreme Court, Not Congress, Declares Carbon an Air Pollutant

Progressives have been using the Courts to unconstitutionally shoehorn their ideology into the machinery of our government for the past century.  So it was no surprise that, starting in the late 1990s, progressives turned to the Courts to force the EPA to regulate carbon as a pollutant under the existing Clean Air Act.   One such effort, Massachusetts v. EPA, made it to the Supreme Court in 2007.  There, five black-robed. progressive climate scientists, led by Justice Breyer, began by fully embracing the one-sided narrative of global warming and the fraudulent temperature record in the opening paragraph of their decision:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

Later in the case, Breyer, to justify the Court’s intervention in this case, recorded the calamities that human-caused global warming had or would, in the near future, visit upon climate sinners:

The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself—which EPA regards as an “objective and independent assessment of the relevant science,” 68 Fed. Reg. 52930—identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years … .” NRC Report 16.

Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. ¶15, Stdg. App. 207, “severe and irreversible changes to natural ecosystems,” id., ¶5(d), at 209, a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” ibid., and an increase in the spread of disease, id., ¶28, at 218–219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., ¶¶23–25, at 216–217.

There were no challenges to these fraudulent claims because “climate science” in the West was conducted as a kangaroo court.  Leaving that aside, the EPA, for its part, argued that Congress was aware of the claims being made of catastrophic global warming.  Congress was free to act but, the opposition argued, the Clean Air Act, designed four decades earlier to address local — and actual — air pollution problems was not the proper vehicle for doing so.  Carbon, a non-toxic, clear, and odorless gas necessary for planetary life was not an “air pollutant” within the meaning of the Clean Air Act.

The Court held to the contrary, in a truly appalling, activist decision.  In order to shoehorn carbon dioxide into the text of the Clean Air Act, the Court defined an “air pollutant” as any “airborne compound of whatever stripe.” The concept of a “pollutant” was written out of the definition of “air pollutant.”  As Justice Scalia noted in his dissent, “it follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’ This reading of the statute defies common sense.”

Regardless, the Court held that the EPA had to address carbon dioxide as a pollutant within the Clean Air Act, thus making the EPA decision a fait accompli.  Nonetheless, the EPA did not immediately do so, as it appeared that Congress would itself hold carbon a pollutant and address the canard of climate change with comprehensive legislation.

IV.  The Refusal of A Democrat-Controlled, Super-Majority Congress To Designate Carbon A Pollutant and to Pass A Program For Global Warming Mitigation.

Following the 2007 collapse of the economy because of the sub-prime crisis, America elected its first hard-core progressive, Barack Obama, and gave him a veto-proof Democrat majority in Congress.  Congress drafted legislation, ultimately known as the Waxman-Markey Bill, a far-reaching green law that would have set the nation on a path to radical environmentalism.  The bill defined carbon a pollutant and authorized a number of costly plans to mitigate global warming.

The center-piece of this legislation was a plan, including a carbon cap and trade program, to force our energy sector to stop using coal, significantly reduce reliance on oil and gas, and replace both with “renewable” energy at tremendous cost to the nation.  After a full debate in committee and on the floor of the House, the House passed the bill, but in 2009, it died in a Democrat supermajority Senate without even a vote.

V.  NOAA Fraudulently Re-does the Temperature Record While the EPA Declares Carbon A Pollutant, & Proposes the Clean Power Plan, Both Acts Having Been Rejected By Congress

Without any congressional vote, Obama’s EPA, in 2009, formally declared carbon and other “greenhouse” gases to be hazardous pollutants. The EPA went to work thereafter, crafting plans to “mitigate” climate change.

In the years thereafter, though, a problem developed.  While countries pumped ever-increasing amounts of carbon dioxide into the atmosphere, global temperatures were not rising in an appropriate ratio as the theory of global warming dictated that they would.  Indeed, the temperatures were not rising at all and had not been for twenty years.

In 2015, as the world readied for the next major climate conference in Paris, Obama, with Congress refusing to act on carbon dioxide, continued to work through his regulatory agencies.  One was to redo the temperature record:

In June, Tom Karl, a top level official at NOAA released a study, “Possible Artifacts Of Data Biases In The Recent Global Warming Hiatus,” purporting to show that temperatures over the past two decades have not paused but, instead, have been steadily increasing. On the recommendations in that paper, both NOAA and the Goddard Institute for Space Studies (“GISS”) have altered America’s historic temperature records. It was an incredibly fortuitous study as it not only found warming that science’s best minds and increasingly accurate measurements had missed, but it did so just as the UN prepares to host the Paris Conference and just before the EPA released its Clean Power Plan.

Karl’s study is problematic at best. The study ignores our most accurate measurements from satellite data, which show that global warming stopped almost twenty years ago, on both land and seas. Further, Karl’s changes to ocean temperature records and Arctic temperature estimates are just brazenly inappropriate.

This was a blatant act of scientific fraud.  Yet it set the stage for the EPA to release its Clean Power Plan, a plan that in many ways duplicated the provisions of the 2009 Waxman-Markey Bill that Congress had already considered and rejected.  What Obama could not achieve through Congress, he was prepared to impose upon this nation by fiat through an executive-branch regulatory agency.

(To be continued in Part III, which I’m working on now.)