Fox News pushed various myths about the latest challenge to the contraceptive mandate provision in the Affordable Care Act (ACA), with Fox & Friends co-host Steve Doocy falsely accusing the Obama Administration of forcing "religious freedom [to] take a backseat to Obamacare."
In a January 15 segment on Fox & Friends, Doocy and his guest, National Review Online editor Rich Lowry, discussed a new challenge to the contraception mandate provision in the ACA. This latest challenge, brought by a group of Catholic nuns from the charity Little Sisters of the Poor, argues that the mandate violates the religious freedom of the nuns because they disagree with the use of contraceptives.
This is not the first time Fox News has misrepresented the Little Sisters case. The fact is, the nuns are already exemptible from the mandate, as both Doocy and Lowry initially point out in the segment. All the sisters need to do is sign a form registering their religious objection -- a requirement that Lowry calls "wrong" and "perverse." For his part, Doocy said more Catholics should be given a "bigger carve out" under the ACA because they "just don't believe in this stuff":
Doocy and Lowry's framing of this issue as an assault on religious freedom -- "Little Sister vs. Big Government" -- is bizarre. Although Lowry begins the segment by admitting the nuns are exempt from the mandate, he still somehow concludes that the administration "should let the nuns off the hook." This upending of precedent would undermine all similar exemption mechanisms for religious objectors whose stance requires someone else to follow the law in their stead. Doocy undercuts his own argument that the government doesn't provide enough exemptions for Catholics, who "by and large, stand against abortion and contraception" when he concedes that "they're more in favor it, for various reasons, these days." And in fact, 98% of sexually active Catholics use or have used contraceptives in their lives.
Lowry ended the segment by explaining that, under the Religious Freedom Restoration Act (RFRA), the government cannot substantially burden religious freedom without a "compelling governmental interest." Whether or not signing a form is a "substantial burden" remains to be seen, but Lowry disingenuously suggests that the only compelling interest at play here is that the mandate apply to everyone, even though the mandate has improved access to contraception and other preventive care services for up to 47 million women. But apparently that's not compelling enough for Fox News.
Fox News joined other right-wing media and misrepresented new federal guidelines designed to reduce the disproportionate number of minority students who are unfairly suspended, expelled, or arrested for disruptive behavior in school.
On January 8, the Department of Education and the Department of Justice issued new guidelines to help public schools "administer student discipline without discriminating on the basis of race, color, or national origin." The guidelines, which are not mandatory, are in response to statistics and analyses that suggest that students of color are significantly more likely to be punished than their similarly-situated white classmates. This means that students who are already disadvantaged will lose out on crucial school time not only due to unfairly punitive disciplinary measures, like suspension, expulsion, or even arrest, but unfortunately due to racial discrimination as well.
In a January 13 segment on The Kelly File, host Megyn Kelly and her "Power Panel" agreed that "zero tolerance" policies are overbroad and ineffective. But Kelly still erroneously insisted that kids "cannot be suspended" under the new guidelines and that they "suggest[ed] punishment should be based on race. " Her panelists, who included both a Fox legal analyst and a blogger for the right-wing Washington Free Beacon, agreed, arguing that the guidelines are "handcuffing our educators" and inappropriately "bringing race into it":
Right-wing media are already spinning falsehoods and fear-mongering about the federal government's administrative decision to recognize federal marriage benefits for same-sex couples who were married in Utah.
On December 20, a federal judge ruled that Utah's ban on same-sex marriage was unconstitutional. Shortly thereafter, state officials began issuing marriage licenses to same-sex couples. However, on January 6, the Supreme Court of the United States temporarily blocked the ruling as an appeal progressed -- halting the issuance of marriage licenses and causing a great deal of confusion for those couples who had already exchanged vows under state law.
In light of that confusion, Attorney General Eric Holder announced on January 10 that for purposes of federal law, legally married couples affected by the ruling would in fact be eligible to apply for federal marriage benefits while the litigation worked its way through the courts. As Holder observed, one of the core holdings of the landmark marriage equality decision of United States v. Windsor is that the federal government is prohibited from discriminating against lawfully performed same-sex marriages.
Nevertheless, right-wing media were quick to overreact to Holder's announcement, with Rush Limbaugh accusing him of acting like "Stalinists." National Review Online joined Limbaugh in condemning Holder, calling it another example of the "lawlessness of the Obama administration." From The Rush Limbaugh Show:
LIMBAUGH: So the states, when you've got people like Holder and Obama in office, it doesn't matter what governors do, it doesn't matter what the people of the state want. What Holder and Obama want is what's going to happen. Holder does not have this kind of power or authority, but he does if nobody is going to stop him or challenge him.
So the law doesn't mean anything. Existing law doesn't mean anything if changes to it are being contemplated, and so the people of Utah -- same-sex marriage, yes, no, are now victims, and the federal government is just going to ride in and wave the powerful magic wand and say, "This is the way it's gonna be." So who needs governors? You have the attorney general engaging in executive actions, executive orders, just as if Obama were to do it. Stalinists, folks.
There is nothing lawless about the federal government making a determination about the disbursement of federal benefits. Doing so does not usurp the state's authority to recognize or acknowledge certain relationships for the purposes of state benefits. Holder's statement today does not require Utah or any other state to recognize same-sex marriages. Rather, it provides some certainty to couples whose marriages were legal under state law at the time they were performed. Among others, this legal opinion has been offered by Utah Attorney General Sean Reyes, who informed state officials that "marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."
Fox News continued to attack the Department of Justice (DOJ) attorney selected to investigate the IRS targeting scandal because she has donated money to President Obama's past campaigns, ignoring the fact that it is illegal for DOJ to take such donations into consideration in assigning investigators.
Last year, Obama announced an investigation into claims that the IRS was unfairly targeting conservative non-profit groups. Barbara Bosserman, senior legal counsel of the DOJ's civil rights division, was selected to head up the investigation. Despite Bosserman's extensive qualifications, right-wing media have been quick to call her objectivity into question based on the unremarkable fact that she is one of the millions of Americans who contribute to Democratic political candidates. Right-wing media also ignored the fact that it would be illegal for the DOJ to take her political affiliations into consideration when managing her professional advancement.
In a January 10 segment on Fox & Friends, Fox contributor and attorney Peter Johnson, Jr. joined host Steve Doocy to complain that, regardless of the outcome, the DOJ's investigation of the IRS is "tainted" because of Bosserman's campaign contributions.
JOHNSON: The Justice Department says, don't look at those campaign contributions. Let us look at what those campaign contributions are, totaling about $6,000.
So Ms. Bosserman, who I'm sure is a fine lawyer, is tainted by these contributions. Tainted by these contributions. And so we expect her to put all of that aside, put all her political procliviites aside, and say "I'm going to be fair now, to this. I'm for the president, I've given repeatedly, but I'm going to give these poor tea party people -- who have been screwed over, big time -- a fair shake."
DOOCY: You know, this would be like -- with the Chris Christie thing, a US Attorney is looking into it, who is appointed by Barack Obama -- this would be like Chris Christie appointing somebody to investigate the bridge thing.
JOHNSON: You don't have to go to law school, all you have to have is a sense of fairness and justice, and ethics, and a sense of Americanism. Now the DOJ says, "No it's OK, we can do this. A spokeswoman said, "it is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions." So what they're saying is, that person could give $15,000, $20,000 --
DOOCY: A million!
Johnson and Doocy quickly dismiss the DOJ's explanation that it would be a violation of federal law for the agency to remove Bosserman from the investigation based on her political leanings. But their skepticism of DOJ is completely unfounded, and it is their suggestion of discriminating against Bosserman that is both improper and illegal.
The Wall Street Journal editorial board is continuing its long tradition of suspect legal analysis, this time denouncing federal judges for "defying" Supreme Court precedent by allowing class action lawsuits to proceed, despite its previous disregard for well-established law in other areas.
This is an odd posture from the WSJ, especially since they weren't particularly concerned with Supreme Court precedent when they supported overturning portions of the Voting Rights Act, getting rid of affirmative action in college admissions, and fetal "personhood" amendments that would result in a blanket ban of abortion. But perhaps it's not all that surprising that the WSJ editorial board would now hypocritically cling to precedent when it comes to protecting corporate wealth.
In a January 8 editorial, the WSJ complained that appellate court judges -- including conservative Judge Richard Posner -- were "defying precedent" by allowing class action lawsuits against Sears and Whirlpool to proceed. The class members in these lawsuits are seeking damages after Whirlpool washing machines, sold by Sears, developed untreatable mold problems. The federal courts' decision to certify this class of plaintiffs, according to the WSJ, is tantamount to the lower courts telling the Supreme Court to "take a hike":
Must judges follow Supreme Court precedent? Any high school student would say yes -- at least where they still teach civics -- but the High Court now has a chance to reinforce the point.
As early as Friday the Justices will decide whether to hear Whirlpool v. Glazer and Sears v. Butler, which concern whether class-action lawsuits can be certified even if many class members suffered no harm. It's the second time in less than nine months that the cases are seeking a hearing at the Supreme Court, highlighting a growing trend of lower courts defying precedent.
In both cases the classes are structured around consumers who complained of moldy odors in their front-loading, high-efficiency washing machines. Last spring, the Supreme Court vacated decisions by the Sixth Circuit (Whirlpool) and Seventh Circuit (Sears) Courts of Appeals to certify the classes and remanded the cases for reconsideration in light of the Supreme Court's 2013 decision in Comcast v. Behrend, which narrowed the standards for certifying class actions.
Under Section 23(b)(3) of the Federal Rules of Civil Procedure, class actions can be certified only when "questions of law or fact common to class members predominate over any questions affecting only individual members." In Comcast, as in 2011's Wal-Mart v. Dukes, the Justices drew specific parameters for the commonality of the class. If plaintiffs are unable to demonstrate common injury or damages on a classwide basis, the Court said, no class should be certified.
Rather than adjusting their opinions, the Sixth and Seventh Circuits blew past the Court's new guidance and reinstated their previous decisions. The Sixth Circuit panel said Comcast had "limited application" while Seventh Circuit Judge Richard Posner shrugged that Comcast didn't change his reasoning because class actions are the most efficient way to handle the mold complaints.
Even if the washing machine companies were right that most members of the class had no exposure to mold, Judge Posner wrote, so what? If true, "that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears -- a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment." Message to Supremes: Take a hike.
What the WSJ doesn't mention is that at least 1.3 million consumers called to complain about the mold and smell emanating from their Whirlpool washing machines. In response to complaints, Whirlpool developed and sold a cleaning product called "Affresh" to eliminate the mold problem. According to Slate senior editor Emily Bazelon, Whirlpool earned about $195 million in revenue from that cleaning product, despite the fact that Affresh didn't actually work. Later redesigns to the washers also failed to solve the mold problem. Nevertheless, Sears continued to sell the washers and consumers sued.
On January 15, the Supreme Court will hear oral arguments in McCullen v. Coakley, a case that could invalidate a Massachusetts statute that creates "buffer zones" around reproductive health centers to ensure the safety of patients and staff. Despite established legal precedent to the contrary, and a disturbing history of violence aimed at Planned Parenthood clinics, anti-choice protesters complain the law violates their First Amendment rights by pushing them back from the health centers' entrances.
From the January 4 edition of MSNBC's Disrupt with Karen Finney:
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In a January 3 segment on America's News Headquarters, Fox News host Gregg Jarrett erroneously stated that the legal use of the word "shall" in the Affordable Care Act (ACA) meant implementation delays are absolutely barred.
Jarrett argued that because the word "shall" was used in the ACA's section that incentivizes large employers to provide health insurance by 2014, the Obama administration's delay of this "employer mandate" is illegal. In an interview with his Republican guest, current Texas Attorney General and gubernatorial candidate Greg Abbott, Jarrett continued, "'shall' -- and you learned this in law school -- is a mandatory word. It is not fungible." Abbott confidently agreed, saying that "as a former Texas Supreme Court justice myself, I can tell you that courts consistently apply that word, 'shall,' to mean that it provides the executive branch no latitude in how they are going to apply the law."
America's Newsroom co-host Bill Hemmer botched his description of a recent legal challenge to the contraception mandate of the Affordable Care Act (ACA) by wrongly claiming that a group of nuns who run the Little Sisters of the Poor charity will be forced to provide birth control to their employees in contravention of their religious beliefs.
In a segment discussing Supreme Court Justice Sonia Sotomayor's recent temporary injunction of the application of the birth control mandate for two non-profits suing the government in Little Sisters of the Poor v. Sebelius, Hemmer misleadingly claimed that the ACA would "make [the nuns] provide birth control" to their employees. Hemmer's guest, Weekly Standard senior writer and Fox News contributor Stephen Hayes, agreed with Hemmer's characterization, calling the Sisters' existing eligibility for an exemption "not good enough." Hayes went on to falsely equate contraception with "abortifacients" and suggested that the Obama administration would provide abortions "if they had their way":
HEMMER: The point for this group of Catholic nuns is that if you make us provide birth control, not only does it violate our religious beliefs, but if we do not do it and adhere to the law, we will suffer fines that will cause us to go bankrupt.
HAYES: Right. And the administration -- remember, back in the spring -- proposed what they called a compromise, which would have allowed these non-profit groups to sort of certify that they weren't providing, actually providing this contraceptive and abortifacient coverage but then the insurance companies would be doing so on their behalf and the argument that you hear from those representing this group and others is that's not good enough because in effect what we would be doing is signing off and facilitating the coverage of these kinds of contraceptives and abortifacients for our employees.
HEMMER: Steve, just back up a little bit. Why did the administration think it was necessary to include this contraception mandate in the health care bill to begin with?
HAYES: Well, I think we've heard from the president pretty consistently that he believes that the government should be in the business of covering all of women's health and that is to include birth control, other contraceptives and these abortifacients -- and, I think if they had their way, abortions themselves.
In 2013, right-wing media kept busy misinforming about President Barack Obama's judicial nominees and progressive precedent such as health care reform and voting rights, all in service of spinning an unprecedented year of Republican obstructionism.
The GOP has consistently maintained a strategy for opposing the president's agenda that represents a new sort of nullification, a scorched-earth obstructionism aimed at immobilizing the federal government. But in 2013, after an endless campaign of procedural sabotage finally led to successful filibuster reform, the right-wing media outwardly embraced Congressional Republicans' political temper tantrum.
Right-wing media spent a generous portion of this year supporting Senate Republicans in their effort to block all of President Obama's nominees to the judiciary and executive branches, even when those nominees were singularly qualified and non-controversial. At the beginning of the year, these efforts got a boost from a bizarre appellate court opinion from the U.S. Court of Appeals for the D.C. Circuit that declared recess appointments unconstitutional. Recess appointments -- where the president makes temporary executive appointments while Congress is not in session -- have been utilized for centuries by both Republican and Democratic presidents to mitigate the filibuster. But that didn't keep right-wing media from reframing this decision as a personal rebuke of the president for his purported lawlessness -- even though George W. Bush and Ronald Reagan also took advantage of recess appointments during their respective presidencies. In actuality, the D.C. Circuit's opinion was a dangerous reimagining of the Constitution that could make the democratic process even more dysfunctional, a result Senate Republicans will be defending in oral arguments before the Supreme Court in 2014.
After initial coverage of the recess appointment decision died down, however, right-wing media reverted back to personal attacks. Two nominees in particular -- current Labor Secretary Thomas Perez and D.C. Circuit Court of Appeals judge Nina Pillard -- were on the receiving end of some of the worst smears. Continuing a well-worn tradition of attacking civil rights defenders as being the real racists, Perez was repeatedly and wrongly accused by The Wall Street Journal of insidiously discriminating against whites on behalf of persons of color. Other right-wing outlets baselessly accused "shady" Perez of dishonest behavior and "flagrant abuse" of his powers as head of the Civil Rights Division at the Department of Justice.
Pillard, on the other hand, was the victim of a barrage of right-wing sexist attacks that seemed at times to be out of a time warp, absurdly accused of being a radical "militant feminist," despite the fact that straight-news outlets and bipartisan legal experts called this law professor and famous civil rights litigator "exceptionally well-qualified." These gripes were based on the strained misreadings of a pair of academic articles which, among other ludicrous smears, attempted to cast her support for working mothers' family planning as "extreme." As legal reporter Dahlia Lithwick pointed out earlier this year, "Pillard's 'radical feminism' appears largely to take the form of seeking equality for women."
There's no reason to think that these right-wing smears will slow down in 2014, especially now that Senate Democrats have embraced the so-called "nuclear option," which Rush Limbaugh, among other overreactions, called the first step towards "total statist authoritarianism."
Forbes recently hyped the American Tort Reform Association's (ATRA) annual "Judicial Hellholes" report, but failed to mention that the report's attempt at methodology is anecdotal and highly suspect.
This is not the first time members of the right-wing media have cheered ATRA's Judicial Hellholes report, which aims to point out the jurisdictions that are the "worst" when it comes to allowing lawsuits to proceed. Last year, a Wall Street Journal editorial board writer called the report the "Oscars" of "abusive class actions."
In his December 16 article, Forbes writer Daniel Fisher called the report "an entertaining read" and minimized legitimate criticisms of ATRA's "hellhole" selection process:
News flash: Madison, County, Ill. is no longer the nation's worst place for corporations to find themselves in court.
California took top honors in the American Tort Reform's annual "Judicial Hellholes" list, an unashamedly pro-defendant look at the nation's judicial system. The Golden State won for the welcoming stance its courts take toward consumer class actions -- particularly against food companies -- and rampant lawsuits targeting small businesses over disability-access rules.
A dozen or so law firms, many of them veterans of the tobacco litigation jackpot, have filed 75 class actions against food companies in California and similar cases are running almost one a week, ATRA reports. Many involve the same plaintiffs and take advantage of the state's stringent laws to target companies like Chobani and Trader Joe's with claims that they mislabeled products -- for example, using the term "evaporated cane juice" instead of "sugar."
Critics may say, with justification, that ATRA is financed by businesses with a strong profit motive to cut down on such litigation. But these lawsuits aren't without cost: ATRA says California consumers paid at least part of the cost of $33.5 billion in settlements in 2013 alone. And, as I have reported elsewhere, studies cast strong doubt on the idea that consumers get anything of value out of class actions supposedly brought in their name.
Unlike the Journal's positive take on the "Judicial Hellholes" report from last year, Fisher at least points out some of its flaws -- namely that it's underwritten by corporations that don't want to pay to defend themselves in court. But Fisher seems far more concerned with the amount of money these companies spend on litigation than he is with the very real harm corporate wrongdoers cause. According to the Center for Justice & Democracy, many of ATRA's members are Fortune 500 companies, including "representatives of the tobacco, insurance, chemical, auto, and pharmaceutical companies" -- all industries with a history of questionable business practices.
A federal agency's new preliminary report debunks the popular right-wing myth that private contracts that require people to take their complaints to an arbitrator are an effective alternative to class-action lawsuits.
Right-wing media outlets have consistently supported what are known as "forced-arbitration clauses" -- contractual provisions that often force consumers to give up their right to join a class action lawsuit and instead require them to go before an arbitrator individually, even if the amount in dispute is so small that it wouldn't make sense to pursue outside of a collective, mass action. Support on the right has grown since 2011, when the conservative majority of the Supreme Court held that such forced arbitration clauses trump consumer protection laws.
The right-wing media has relied in part on that Supreme Court ruling to dismiss criticism of forced arbitration as "unfair." For example, Ammon Simon at National Review Online has called forced arbitration clauses "especially generous towards consumers," and called class-action lawsuits "a cash cow for trial lawyers ... [that] don't usually help consumers, who are systemically under-compensated in such cases." Simon continued:
While trial lawyers would benefit from strictly limiting arbitration, consumers would suffer. ... [C]lass action lawsuits last an average of 3 years from start to completion, while arbitrations last slightly under 7 months. What's more, while consumer claims go on the backburner to trial attorney fees in class action litigation, consumers can actually be successful in arbitration, and prefer arbitration to the alternatives.
Hans von Spakovsky, also an NRO contributor and a legal fellow at the ultra-conservative Heritage Foundation, argued that forced arbitration clauses are "an efficient and fair alternative to our costly and burdensome litigation system":
Given the arbitration process's many benefits over the only real alternative -- expensive and time-consuming litigation that in many cases does more to line trial lawyers' pockets than redress consumers' injuries -- any action to curtail arbitration would only injure consumers and workers.
Simon and von Spakovsky agree that arbitration clauses provide consumers with a better chance of fair compensation than do class-action lawsuits.
The Wall Street Journal's editorial board has accused the Environmental Protection Agency (EPA) under President Barack Obama of violating federalist principles for a rule that would limit air pollution that drifts across state lines. However, the same editorial page previously urged President George W. Bush to implement similarly designed policies during his presidency.
In 2005, the Bush administration's EPA issued the Clean Air Interstate Rule to address pollution that drifts across state lines, "contribut[ing] significantly" to other state's smog problems. At that time, the WSJ did not appear to have an issue with programs that limit one state's pollution to help other states meet Clean Air Act obligations. For example, on July 12, 2006, the WSJ argued that "[o]ne of the great revolutions in environmental policy has been the adoption of the 'cap-and-trade' method for controlling air pollution, starting with the 1990 Clean Air Act. The basic idea is to have the government set overall limits and let the market figure out how most efficiently to achieve the goal. And it has been a major success" (retrieved via Factiva).
Now that President Obama is in office, the WSJ believes such cap and trade designs violate federalist intentions. Writing about a Supreme Court challenge to EPA's "Transport Rule," which has been proposed to replace the now-overturned Bush-era rule, the WSJ complained that it violated "the federalist structure of the Clean Air Act" because it "no longer gave states a chance to develop their own plans to meet their required 'good neighbor' emissions targets." The WSJ editorial ultimately concluded that "[t]he Supreme Court should overturn [the rule] for violating the federalist intentions of Congress[.]"
In a recent investigative report, NBC News debunked right-wing media's insistence that lawsuits brought against gas can companies whose products explode were "frivolous." As reported by NBC, its findings not only led the federal Consumer Product Safety Commission to recommend that the industry remedy the gas can defect at the heart of the lawsuits, but also prompted co-defendant Wal-Mart to propose a $25 million settlement.
Last year, Blitz USA, the number one manufacturer of red gas cans who refused to put flame arrestors in their products' spouts, closed its doors. Flame arrestors are a commonly used device that is "almost two hundred years" old and inexpensively prevents gas vapor from igniting the contents of the can.
Right-wing media, however, blamed multiple "frivolous" lawsuits for Blitz USA's decision to cease operations. Despite the fact that the plaintiffs in the cases had been severely burned or killed after gas cans exploded when the spout was close to a heat source, The Wall Street Journal compared their lawyers to "19th century marauders" and characterized the gas can companies as "victims" of "modern robbery" by the trial bar. From the WSJ's editorial:
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.
Until recently, Blitz USA -- the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma -- was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.
Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.
Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.
The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.
Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.
The WSJ has a long record of opposing "frivolous lawsuits," so it's no surprise it would ignore the evidence on gas can explosions and side with the corporation. But the WSJ wasn't alone in its criticism of the gas can lawsuits. International Business Times went further than the WSJ, blaming victims for "product misuse and lawsuit abuse," and positively cited a spokesperson from the Institute for Legal Reform (ILR) -- a partner of the pro-business lobbying group U.S. Chamber of Commerce.
The Wall Street Journal misled about a new Supreme Court case that could make it more difficult for the Environmental Protection Agency (EPA) to enforce regulations that would reduce cross-border air pollution, pretending that it was inappropriate for the federal government to regulate this quintessential interstate problem.
On December 10, the Supreme Court heard oral arguments in EPA v. EME Homer City Generation, a case challenging the EPA's authority to implement regulations to manage and reduce air pollution that drifts from source states into neighboring jurisdictions. Even though the EPA is empowered by Congress to promulgate rules to alleviate these coal plant pollutants through the Clean Air Act (the Act), a number of states and private companies sued the agency, arguing that it had exceeded its regulatory authority.
In a recent editorial, the WSJ complained (again) about the EPA's supposed regulatory overreach in its various attempts to curb acid rain and smog. But the WSJ ignores that air pollution that crosses state lines is a complicated and inherently federal problem with no easy solution, and one that states have failed at solving on their own. Because of national wind patterns, eastern states have become the dumping ground for midwestern and southern air polluters, even while they themselves "have squeezed all the pollution they can out of their own economies."
From the December 9 editorial:
The Environmental Protection Agency's habit of stretching its legal authority faces another reckoning ... when the Supreme Court considers whether the agency can rewrite the Clean Air Act to usurp state responsibilities. This one ought to be in Justice Anthony Kennedy's federalist sweet spot.
The case focuses on the Clean Air Act's "good neighbor" provision that gives EPA the power to oversee remedies when pollution in one state blows into a neighboring state. An upwind state that EPA judges to "significantly contribute" to a downwind state's failure to meet federal standards can be required to limit emissions by a commensurate amount.
Texas and more than a dozen other states as well as private companies challenged EPA in Environmental Protection Agency v. EME Homer City Generation, and in August 2012 the D.C. Circuit Court of Appeals struck down the rule. Judge Brett Kavanaugh wrote for a 2-1 majority that "Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable." Democrats cried foul and blamed Judge Kavanaugh for being a Bush appointee, but it's telling that the full D.C. Circuit denied en banc review.
The EPA says in its defense that business should love the rule because it is the most cost-effective, but that isn't necessarily true for certain states. The Administration is also arguing that the states didn't raise their objections loudly enough during the rule-making process, but the states also didn't know how far this EPA would go until the rule was final.
The D.C. Circuit only rarely overturns EPA rules, which shows how out of bounds the cross-state regulation is. The Supreme Court should overturn it for violating the federalist intentions of Congress, but there is also the added judicial incentive to show this increasingly rogue agency that it can't rewrite the law as it pleases.
WSJ also complained that the new rules promulgated by the EPA to minimize the spread of air pollution from one state to another "violate the federalist structure of the Clean Air Act" because they evidently "no longer [give] states a chance to develop their own plans" to meet their "good neighbor" requirements. But this argument ignores the fact that not only has the WSJ itself previously acknowledged that "The EPA is within its legal discretion to reinterpret clean-air laws," but states that refuse to incentivize polluters within their borders to act responsibly in the face of a devastating public health crisis have only themselves to blame when the federal government steps in.