Is the EPA’s Clean Power Plan legal? Lawyers and law professors disagree

by Judith Curry

We polled 130 environmental attorneys and law professors from around the country about the legality of the Environmental Protection Agency’s proposed Clean Power Plan. The results might surprise you. – Brian Potts and Abigail Barnes

The EPA’s Clean Power Plan has substantial political and economic ramifications; for a recent discussion, see The impact of a rogue EPA by Steve Forbes.  The legality of the EPA’s Clean Power Plan was discussed previously at CE:

See also this recent paper by Jason Scott Johnson:

So, is there any consensus among lawyers about the legality of the Clean Power Plan?  This issue is addressed in an interesting new paper:

Is the EPA’s Clean Power Plan Legal?  Lawyers and Law Professors Disagree

Brian Potts and Abigail Barnes

Abstract.  The Environmental Protection Agency’s Clean Power Plan is the centerpiece of President Barack Obama’s climate agenda. Since its release last year, numerous law professors and attorneys have published articles debating the Plan’s legality. We polled 130 environmental law professors and attorneys from around the country to obtain their views on the subject. Our essay reports the results.

Full manuscript is available [here]


Given how closely divided our respondents were on the Clean Power Plan’s legality, one cannot conclusively determine a majority position from our results. Nonetheless, we think it’s fair to say that a significant portion of the environmental law community believes that the Clean Power Plan is on shaky legal ground. And, as such, legal challenges to the Plan are far from frivolous (as some in the press have implied).

In fact, although we are supportive of climate regulation (and many of the ideas in the Clean Power Plan), both of us have published articles questioning whether the Plan is legal. As we see it, the job of a lawyer is to read and interpret the law, and personal beliefs shouldn’t impact his or her legal analysis. So although we might support climate regulation, that does not necessarily mean we will conclude that the Clean Power Plan is legal. We think that under this provision of the Clean Air Act, the EPA’s authority to issue the rule is tenuous.

EPA says the best system of emission reduction to reduce CO2 from existing power plants is for states to implement the following “building blocks” on a state-wide basis:

  1. Improve the efficiency of all coal-fired power plants in the state by six percent;
  2. Ramp up the operation of all existing natural gas combined cycle units in the state to a 70 percent capacity factor, and assume increased generation from these natural gas units offsets existing generation at coal-fired power plants in the state;
  3. Increase the percentage of renewables used in the state to between 2% and 25%, depending on the state, and assume that nuclear plants under construction will be built and that 5.8% percent of all existing nuclear capacity does not retire; and
  4. Increase the use of energy efficiency programs to reduce electricity consumption by 9% to 12% by 2030, depending on the state.

The Conclusions provide an interpretation of their results:

Based on our results, we identified several noteworthy outcomes. First, approximately 80% of environmental law professors polled believe the Clean Power Plan is legal, compared to only 27% of the private environmental attorneys who responded. One reason for this could be that 74% of private attorneys in this poll represent clients on matters directly involving the Clean Power Plan, which may have imputed a bias into their responses. Alternatively, only 13% of professors represent clients. Of course, the poll was anonymous, so it could also be that these private attorneys have simply spent more time examining the potential legal issues with the Clean Power Plan than the law professors. Law professors are also known to be a liberal-leaning group, so it’s also possible that politics played into their opinions. Regardless of the reason, however, we think the glaring discrepancy in opinions is striking.

Another interesting finding is that most respondents do not believe that building block 1 is illegal, or that the Plan is unconstitutional. Considering that these two arguments are widely viewed as the weakest challenges to the Plan’s legality, this did not come as much of a surprise. But it certainly does not bode well for Professor Tribe’s constitutional arguments: the long-time liberal-lion is certainly in the minority with his belief that the Clean Power Plan is unconstitutional.

Instead, most respondents cited building blocks 3 and 4 as the reason the Plan is illegal. Somewhat less, but still a majority of those responding, also believe the Plan is not legal because of building block 2 and the language in section 111(d). As discussed above, building blocks 2, 3, and 4 deal with EPA’s interpretation of the word “system,” and the extent to which the EPA can regulate emissions outside the fence-line—or beyond the power plants themselves. Building blocks 3 (increased renewables) and 4 (energy efficiency) are clearly outside the fence-line actions; however, whether or not building block 2 is an outside the fence-line action is more debatable, as it involves running existing natural gas plants more to offset generation from coal plants. The fact that more respondents believe building blocks 3 and 4 are illegal than believe building block 2 is illegal therefore makes sense. Interestingly, the few professors that said the Plan is illegal cited either section 111(d) or building blocks 3 and 4 for the basis of its illegality.

Finally, 34% of respondents who believe the Plan is illegal do not think states should submit implementation plans to EPA. This percentage was higher than we anticipated, since this approach would likely increase electricity rates for those states that opt-out20 and could invariably end up backfiring (which is ironic, since the reason many are suggesting that states opt-out from a policy standpoint is because they believe the Plan will increase electricity rates and hurt their state’s economy).

Of course, in the end, it is only the opinions of nine people that will likely matter, none of whom participated in our poll: the nine justices siting on the U.S. Supreme Court. And while it is impossible to know how the Supreme Court might rule, a majority of the currently siting justices were law professors prior to being appointed. Based on our poll results, that could end up being good news for President Obama’s Clean Power Plan.

JC reflections

It will certainly be interesting to see how the legality of the CPP plays out.

I find a number of things interesting about this study.  The lawyers are evenly split as to whether or not the CPP is legal – interesting in itself.  What I find most interesting is the split between academic lawyers versus nonacademic lawyers, with a substantial majority of academics finding it legal and a substantial majority of nonacademic lawyers finding it illegal.

This is one of the few instances I’ve seen where learned individuals have been surveyed to include both academics and private sector individuals.  The importance of more diverse perspectives was highlighted in a recent post  Importance of intellectual and political diversity in science, motivated by Joe Duarte’s research.

Where does the intellectual and political diversity come from in the climate debate?  Certainly not from academia (other than emeritus professors or professors nearing retirement).  What little diversity there is comes from think tanks like CATO, privately funded groups like Berkeley Earth, and independent researchers such as Steve McIntyre and Nic Lewis.  This is a tiny tiny group of people.  Non academic diversity on the ‘warm’ side is more organized, e.g. organizations such as Climate Central that seem pretty well funded.  Of course industry funding (especially if it is tainted with fossil fuels) is regarded as a source of bias, whereas funding from green organizations somehow isn’t.  Personally I think we should figure out ways to support more diverse perspectives on climate science and policy.

159 responses to “Is the EPA’s Clean Power Plan legal? Lawyers and law professors disagree

  1. “As we see it, the job of a lawyer is to read and interpret the law, and personal beliefs shouldn’t impact his or her legal analysis.” It is interesting to think that lawyers as a profession may well be more honest and less biased or subject to pressure to conform than scientists.

    • And maybe even more interesting that the supreme court is divided by political ideology rather than legal pragmatism.

    • “the job of a lawyer is to read and interpret the law, and personal beliefs shouldn’t impact his or her legal analysis”

      Chief Justice Roberts disagrees. He prefers to re-write laws.

    • “It is interesting to think that lawyers as a profession may well be more honest and less biased or subject to pressure to conform than scientists.”

      Not on this planet. Progressive lawyers, like progressive scientists, are progressives first, and everything else second.

      If you want to know where post-normal science comes from, it’s an outgrowth of what has hilariously been called “legal realism”. That is a school of legal thought, originating at Harvard (what a shock) that holds that law is merely an expression of power, not an objective set of legal principles.

      The infamous “living Constitution” is one example of legal realism in practice, as is Chief Justice Roberts’ and Justice Kennedy’s re-writing of whatever statute suits their fancy at the time.

      Progressive attorneys believe that whatever policy they favor is legal, and the Constitution, statutes and common law be damned. And progressives dominate the legal profession.

      • The fact that there is such a division of those polled demonstrates just how unconstitutional the plan is. Environmental lawyers tend to be very liberal, even in private practice. Even as ridiculously out of bounds as this plan is, I’m really surprised they could find that many liberal lawyers willing to say so.

      • Stanton Brown,

        But it said 74% of the private lawyers had clients involved in the clean powers act. They said it makes them bias (as if the professors weren’t ). I would guess they are probably more informed since they are actually involved with the act.

      • I’ve been a lawyer for the better part of 4 decades. I was engaged to an environmental lawyer right of school. I know environmental lawyers. Lots and lots of them.

      • Danny Thomas


        I don’t think it’s a fair discussion to state that progressives are soley of issue. With your statement :”Progressive lawyers, like progressive scientists, are progressives first, and everything else second.” Would it not be applied equally to state that “Conservative lawyers, like conservative scientists, are conservative first, and everything else second?”

        There are, for this observer, no clean hands on one side of the discussion and only clean hands on the other. Bias is imputed on all sides, if one is fair in the evaluations. If nothing else, as a way to offset the bias’ of the “other side”.

        Not intending to indicate one side is more correct than another, just that the divide is indicated in courts/jurisdictions up and down the line.

        I’ve stated many times to the CAGW/AGW side of the discussion that this “fight” was brought about from the left but this perception does not alleviate that the right is soley “in the right”.

        If one believes/perceives that money influences the science one can certainly believe money influences the attorney’s on both sides who argue the detail. I’d speculate that Rud could provide much greater insight.

      • Gary M. “Progressive attorneys believe that whatever policy they favor is legal, and the Constitution, statutes and common law be damned. And progressives dominate the legal profession.”

        Exactly so! But why is that? For over 100 years we have been subject to an obscenely pathological view of life that runs around under the heading of Progressivism.

        This belief that power is everything, that the State is to be all powerful, the individual is nothing, the collective everything is rampant in our culture. We start with the legal misanthropy of an Oliver Wendell Holmes and end with a Chief Justice like John Roberts who interpret the law to mean any damn thing they want it to mean as long as it enhances the power of the State and if that trods on the rights of the individual, too damned bad.

        Politically correct speech, group rights, identity politics, rule of men over rule of law, honesty and decency trashed in favor of ‘winning’ at all costs and a belief that one’s own perspective on the world is not perspective but absolute truth, rules the day. Instead of a public square where many perspectives vie for followers you get a public square where one perspective dominates all others and does so in any means necessary no matter what the cost to the values that have underpinned our social order, our prosperity, our success. It’s as though we are dealing with rich adolescents who never discovered the source of wealth, of prosperity, of values that make life possible and have no intertest in doing so. Their ony interest is in getting, keeping and maintaining power and the bodies that pile up in their wake are casually dismissed as collateral damage on the way to Nirvana.

        However, Nirvana, to a Progressive, is a vague approximation to the ‘good life,’ a floating abstraction as defined, not by each individual, to be pursued with all the consequences, both positive and negative that that affords, but by them alone. And just like the adolescent who has wealth and privelege without understanding the source of these things, Progressives run amok, passing law after law after law with the blind belief that another law and all will be well as a cover for their own deeply nihililstic world view.

        Progressives are people deeply motivated by fear and envy and they have always been with us but have remained marginalized where fear and envy can do the least damage. What changed a little over 100 years ago that let loose on the world this Grand Vision that technocratic elite power wielded through the agency of the Nation State by elites of one sort or another was the answer to all of life’s vagaries and problems?

        Why has there been a vacuum of ideas robustly argued for that would counter this putrid philosophy of life? Where has been the army of intellectuals to think, write, expound on and explicate the world we move through that could and would give a strong defense of individual rights, the rule of law, the fundamental principles that the Constitution was based on and that underlay the Declaration of Independence. Where are the intellectuals, phiolosophers and writers that would give meaning and substance to the world about us based on the principles of the Enlightenment?

        Why is the administrative state, and the philosophy it rides on ascendent? Why does it seem that that philosophy has rushed in to fill a void, a vacuum? Where are the defenders of Liberty, Freedom, Prosperity, Individual Rights who would be foes to the kind of unbridled State Power that Obama and the Left in general are advocates of?

        Why don’t more of our legal minds think like those here on display in the Texas Supreme Court?

        What the hell happened?

      • Freedon4all,

        “Progressives are people deeply motivated by fear and envy and they have always been with us but have remained marginalized where fear and envy can do the least damage.”

        I disagree. Progressives are overwhelmingly motivated by vanity. They belief that they are part of a small group of superior beings with not just the ability, but the right to order the lives on hundreds of millions (or billions) of others.

        But while the term ‘progressivism’ is new, the phenomenon has been part of human history for millennia. Rule by self appointed ‘elites’ – monarchical, oligarchical, aristocratic, theocratic, and now technocratic – have been the norm of human history, even today. More people still live under authoritarian and totalitarian governments than in democracies.

        The change about 100 years ago was the adoption of fascism in the west as a ‘compromise’ between the free market democracies of the west, and the socialist/communist dictatorship in the Soviet Union. They borrow the faux scientism of Marx with the centralization of power in 1930 Germany, Japan and Italy,

        No matter its name though, progressivism is a political movement that relies on the centralization of power in the state. The ‘living’ Constitution, the regulatory state, Supreme Court and presidential imperialism, are all just aspects of this same phenomenon. The attacks on the Constitution, family and religion all serve the same end, deconstructing institutions that vie with the state for the people’s loyalty.

        While elitist monarchs of old often claimed the divine right of kings, modern day autocrats disguised as progressives claim the divine right of ‘science’.

      • Danny Thomas,

        “Would it not be applied equally to state that ‘Conservative lawyers, like conservative scientists, are conservative first, and everything else second?'”

        It would indeed. The difference is that conservatism is a doctrine of principles. A conservative wants to conserve the economy, culture and body politic that has arisen after hundreds and thousands of years of trial and error.

        For instance, I am a conservative Catholic. But that requires that I adhere to the rules of my profession, the law of my country, and the morality that governs both.

        Progressivism on the other hand is about power. Everything comes second to the accumulation and maintenance of power. The central progressive legal theory is ‘legal realism’, a doctrine that teaches that there is no objective rule of law, only the exercise of power.

        – The US Constitution prevents the centralization of power in a progressive government? Ignore it.
        _-Religion and the family make people resistant to dependence on government? Destroy them.
        – Free speech educates voters so they do not fall for the false promises of free money? Stifle it.

        Being a good conservative means being a good citizen and a moral person

        Being a progressive means getting and keeping power.

      • Danny Thomas

        Gary M,
        Thank you for that thoughtful response.

        The main argument I’d offer in disagreement (and I think it’s my error in prescribing too broad a brush) is with this: “Being a progressive means getting and keeping power.” As I’d presume you’re referring to those in political high office who wear the label as opposed to those who’s belief in the progressive world view is due to more altruistic reasoning.

        I’d venture to say that in a person to person informal chat with those who hold the progressive thinking as dear they do so out of a ‘true’ sense of caring for others.
        (I’m speaking from the point of view of a self labeled independent with some 25% or so libertarian views, high conservative fiscal leanings, and strong socially liberal tendencies all while sharing your “But that requires that I adhere to the rules of my profession, the law of my country, and the morality that governs both”)(or maybe I’m just a hot mess?).

      • Danny Thomas,

        I know many people who vote progressive, and just don’t understand what progressivism is all about. I call them default progressives, they believe what they believe because it is al they have been taught. What I was describing above was movement progressives. Many of them don’t really understand progressivism either, but are fervent true believers. They people all kinds of government offices, NGOs and media outlets.

        Both of those kinds of people are feeding their egos, imagining themselves part of an elite because they vote the right way and say the right things, and believe what they are told to believe.

        Real progressives who understand what they are doing and why, are a small minority in fact. But put them all together and you have a the movement we see today where even the most inconsequential progressives try to be power brokers by bringing idiotic law suits, staging demonstrations, etc.

        But for all of them, it is about vanity and power (if vicariously)..

      • patmcguinness

        “Not on this planet. Progressive lawyers, like progressive scientists, are progressives first, and everything else second.”

        Yup. To them, the ends justify the means, and they will use what tools they can. When they had the Congress almost ready to pass Waxman-Markey, then it was ‘vital’. Now they do the same without a new law at all, just EPA winging it with Clean Air Act rules. The obvious irony of progressives supporting an administration that rewrites environmental laws to suit their whim is lost on them. Would they support a Cruz administration doing that? Of course not. Only “good” ends justify illegal means to them.

        “a significant portion of the environmental law community believes that the Clean Power Plan is on shaky legal ground” – This is telling. As per Stanton Brown’s comment, these lawyers would want to give EPA the benefit of the doubt. If many can’t or won’t, it’s a sign of legal weakness.

        The CPP (Coal Punishment Plan) is illegal mainly because it goes outside the plain scope of the 1990 Clean Air Act, going ‘outside the fence’. CO2 is not a pollutant like other point sources of pollution. Point-source regulation like the CAA contemplates (and is appropriate for other real pollutants) is simply wrong for CO2. The entire amount of CO2 reduced via this regulation is miniscule relative to global CO2 and only global levels matter, with a ‘harm’ equally spread across the globe. Hence, the attempt for EPA to go outside the fence – policy-wise more sensible, legally bankrupt. There is no legal authority under CAA to make states have a ‘plan’ that is all-encompassing, the reason why so many states are suing.

        Less clear (legally) but the real rotten core of the EPA’s action is the fact that the EPA’s 2009 finding of harm rests on is on bad science. They wrongly use estimates and projections that are simply unrealistic extrapolations of worst case. As in the mercury regulations, they are ’tilting the scales’ to overstate harms. Further, there is amazing hubris in insisting that existing plants just up and improve efficiency by 6%, using metrics that the industry considers absurd.

        Courts alas will give a LOT of deference to an EPA’s judgement. It’s deference the EPA doesn’t deserve, if not legally, at least from a policy perspective. As with Obama’s immigration actions, they are doing via administrative fiat what they couldn’t do via Congress, and this has collateral damage to rule of law well beyond the questionable policy and science under it.

  2. Judith,

    John Sutter of CNN did an editorial today called “We can’t ignore climate change skeptics–even if we really, really want to.” Like many believers, Sutter doesn’t seem to realize that there are major differences between Skeptics and Deniers. Anyway, the moral of the story is that much of the major media has the same problem, which means the U.S. electricity sector is facing a thankless task in the face of vocal environmentalists.


    • As I keep saying, I don’t like to call them deniers – just those who have not yet seen the pause.

      The reality is that there are sceptics and there are those like Mannian followers who deny the climate changes (except during a very short time after the global cooling scare, after clean air acts removed atmospheric pollution and before the pause).

    • patmcguinness

      John Sutter leads with the ‘97% consensus’ lie and throws in a few more journalistic climate narrative fibs, and then after assaulting us with this blatant propaganda, he wonders why many flee into skepticism at the hype.
      The lack of honesty from the media on this is an outrage, and people like Sutter are to blame.

  3. The real question is whether or not there are legal constraints on the executive branch of government now.

  4. This result doesn’t surprise me. Lawyers always disagree on everything. The split between the practicing attorneys and the academic attorneys is troubling.

    One critical thing is this: In court, one can NEVER predict what a judge (much less nine Supreme Court Justices) will do or decide.

    George Devries Klein, PhD, PG, FGSA

  5. The EPA’s labeling of CO2 as a poison is an example of pseudo-intellectual, anti-business McCarthyism. Fueling fears of sea level rise is the real WATERGATE. The EPA should just forget about the facts and make human-caused sea level rise illegal. That will stir up chaos.

    Serial sovereign defaults [e.g., Greece] and further severe global economic recession seem unavoidable. In these conditions, the ongoing obsession over AGW is looking more and more like a mental disorder, not unlike the mass manias of the Middle Ages… [where] angry mobs may be only too willing to accord full credit to false prophets. (Walter Starck)

  6. The organization and implementation of a Progressive agenda is breath-taking. A clear strategy to controlling state and Federal Government which will saddle the American economy with high debt and a litany of mandates, all of which come from edicts or a corroborating majority.

    Too late to undo Obamacare except to eliminate it entirely. Politically hard to do.

    To late to rewrite the Clean Air Act and its amendments that would limit its cancerous growth. Only a sunset rule would do such a thing.

    And certainly too late to undo the Clean Power Plan as it already has too many entanglements of agendas, self-interest parties, and a control over a complicit media. Not much light will get out of this box.

    My cynicism is tempered because in our history the reversal of Prohibition laws against alcohol. The foundations for 1920 US Prohibition included a pietistic Protestantism, and “coincided with the advent of women’s suffrage, with newly empowered women as part of the political process strongly supporting policies that curbed alcohol consumption.” (Wiki) If we substitute the CAGW religion for pietistic Protestantism and the Progressive branch of liberalism with women’s suffrage we may see similarities to Prohibition. 13 years later, Prohibition was abolished. The harm done was a legacy of organized crime. The harm done by the impending policies and edicts by our President, more likely than not will be the burden of debt left to our grandchildren who will toil in its shadow in spite of more pleasant weather a hundred years hence.

    I am encouraged that the American people will eventually see through the climate scare on their way to a brighter future and do not have to be led by their noses as the present establishment acts as if it were necessary.

    • “If we substitute the CAGW religion for pietistic Protestantism”
      A tenant of Gottfried is the transmogfrication on Protestantism to the progressive self flagellation on issues such as ‘evil West’, and environmentalist guilt being an easy leap.
      Nice comment.

      • All the argy-bargy aside, increased atmospheric CO2 may be a net benefit to humanity in the long run but right now, with the Left in charge, it has led to the Greekruptcy of Western society.

  7. And, probably the independence of federal agencies and State Rights.

  8. Fear not sweet Judith, Your GOP has heard your prayers and lamentations and they have been mighty moved to smite down the evil EPA, Dept. Fish and Wildlife Services and Interior Dept.

    Tonight on C-SPAN 1 (house)
    -prohibit use of funds made available for California drought response or relief in contravention of implementation of the California Water Code.

    -prohibit use of funds by EPA to issue any regulation that applies to an animal feeding operation, including a concentrated animal feeding operation and a large concentrated animal feeding operation.

    -prohibit use of funds to implement or enforce the threatened species listing of the lesser prairie chicken.

    -prohibit use of funds to limit outreach programs administered by the Smithsonian Institution.

    -approved use of funds to carry out seismic airgun testing or surveys off the coast of Florida.

    -prohibit use of funds to implement, administer, or enforce the rule entitled “Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces” published in the Federal Register by the EPA.

    At this point it would have been faster to just delete all funding and just add amendments for the stuff they actually approve of. I think the only thing they have approved was expanding drilling on public and government properties.

    • Well, at least they are on the right path. The next step is to completely defund and abolish the EPA.

      • Prohibit use of funds by EPA to issue any regulation that applies to an animal feeding operation, including a concentrated animal feeding operation and a large concentrated animal feeding operation.

        This was my favorite. Along with abolishing the EPA lets get rid of the USDA too. Our food supply is too important to regulate.

      • Humans used to live with their animals. You’ll get used to the smell. It’s sort of like living in Houston. Everybody knows it’s smells like mildew; they just ignore it. And it’s a great place to live.

      • JCH,
        Looking at the size of the US dog and cat population we are still living with animals. Our last dog lived 14 years and my wife was so emotionally attached to the critter we spent over $1300 in the last 6 months of his life on vet. bills and then another $200 on cremation. This nation is full of well meaning idiots.

      • jacksmith,

        “Prohibit use of funds by EPA to issue any regulation that applies to an animal feeding operation …”

        Lets not exagerate. This has nothing to do with USDA or regulating food quality in the US. In case you are not aware, EPA on more than one ocassion has floated trial ballons on regulating methane emissions from meat producers. They’ve had a hard on over this idea for some time as it has the bonus effect of reducing evil meat consumption by increasing the cost of production.

        Now you may think regulating cow flatulence is a valid role for the EPA. I see it as an agency looking for any means possible to expand their scope of oversite.

      • jack,

        “we spent over $1300 in the last 6 months of his life on vet….”

        Got you beat. My yellow lab started feeling poorly and stopped eating. Took it to the vet and they said it had a mass and was bleeding internally. They could remove the mass and stop the bleeding, or they could do a biopsy first to determine if the mass was cancerous. At over $200 a day for the hospital, I didn’t want to wait 5 days for the results. And though I had made fun of people who spent fortunes on their pets, I caved like a house of cards and authorized the surgury (at $3,000). It was successful, the dog came home and after a day or so, started to eat again. Then I get the call on the biopsy results. Cancerous. Of a very agressive type. They gave her 3 weeks to a couple of months. Dog lived a little over 3 more years, almost 15 when she finally passed away.

        PS – At least I didn’t waste money cremating her. Dug a hole in the back yard for her. Screw county regulations prohibiting that. More nanny state crap.

      • timg56,
        Thanks for the words of comfort.
        Next time I think I’ll get a parrot so the damn thing will out live me.

        Look I’m not kidding about the USDA. They only inspect a tiny percent of carcasses now so it’s pretty much a honer system already. Just a few months ago Blue Bell Diaries was putting out tainted ice cream for weeks before the bodies started piling up so our last line of defense is the CDC (Center for Disease Control) I guess.

        That huge toxic algae bloom in lake Erie last year was traced to agriculture effluents. So how do you persuade a feed lot or factory chicken farm from dumping raw waste and chemicals in to the water supply? It gets really complicated especially when the local farmer/rancher is just a contractor for an out of state corporation. (Think Smithfield Foods who is now owned by China.)

      • Jack,

        I have no argument against increasing funding to USDA for inspection and enforcement. Same for EPA as far as that goes.

        My problem is when an agency goes looking for something new to justify their existence. Go read up on what happened with the 20,000 or so Revenue Agents Dept of Treasury had on it’s rolls the day Prohibition ended. A logical person would assume the majority of those agents would be out looking for a new job. A government agency instead trys to figure out what else it can assert oversight on to keep those people busy. (Afterall, getting rid of 20,000 people means you don’t need so many Supervisors, Assistent Directors, Deputy Directors, Assistent Deputy Directors …) For Treasury it was deciding they needed to regulate the length of shotgun barrels.

        PS – I recommend staying away from the Norwegian parrot. Not as likely to outlive you as one might think.

      • timg56,
        Darn, the Norwegian Blue parrot was at the top of my list. If you know anything about parrots they are extremely noisy but the Norwegian Blue is famous for it’s extended sleeping habits. :)

        As to the USDA (and all non-defense branches of our government), well I wish someone would point out to me where this congress has actually increased funding to any regulating agency in the last 4 years.
        Actually I think I remember they might have directed the Dept. of Transportation to increase safety standards for rail oil tankers but they funded it by transferring money from another part of the budget.

      • Tell you what jack, why don’t you build yourself a nice little bubble and live in whatever risk free paradise you think can be acheived. If you think it is possible to inspect every sliver of meat before it goes on the shelf, then you can pay for it, or, just become a vegan and grow your own food.

      • Barnes,
        Actually I think you and I can agree on at least one thing. Life is not fair but it is too short.

        When I read stuff like this it always makes me wonder about the stuff that we don’t hear about.
        “China’s latest stomach-churning food scandal”

        Can you imagine just paying the electric bill for thirty years just waiting for a chance slip this in to their food supply? There are a lot of really evil people out there and sometimes our government is the only thing standing between us and their greed or ignorance.

      • jacksmith4tx:

        “That huge toxic algae bloom in lake Erie last year was traced to agriculture effluents.”

        Not the only cause by a long shot. The City of Detroit can’t afford to maintain/upgrade their sewage treatment plants and are dumping raw sewage into the Detroit River.

        “In 2011, the worst year for algae on Lake Erie, there were 45 billion gallons of sewage overflows from the Detroit Wastewater Treatment Plant.”

      • …a lot of really evil people out there and sometimes our government is the only thing standing between us and their greed or ignorance.

        That’s very funny. Historically, the “really evil people” are those who use expanded power of government to satisfy the greed of their most generous benefactors. And they rely on the credulity of “us” to do so.

      • verdeviewer,

        “Historically, the “really evil people” are those who use expanded power of government to satisfy the greed of their most generous benefactors.”
        I’m sorry I used the wrong word. Here at CE we say ‘wicked’ not evil, different but the same.

        I can’t understand why the population can expand 10 fold and you think governments only get bigger because really wicked people use expanded power of government to satisfy the greed of their most generous benefactors. Do you think it would be different if we had a better ratio of citizens to legislators than the current 700,000 to 1? If I wanted to use money to influence congress it’s a lot cheaper to just rent just one rather than have to control 5 or 6 more per district to push your issues?

      • I’m sorry I used the wrong word. Here at CE we say ‘wicked’ not evil, different but the same.

        Totally clueless.

      • …better ratio of citizens to legislators…

        The ratio of registered voters to legislators was 286,274:1 in 2012. For actual voters, it was 241,561:1. The relevance of this to corruption of regulatory agencies and agricultural inspectors escapes me.

        Evidence the EPA has been ideologically corrupted by a well-funded activist group in league with the current administration:

      • verdeviewer,
        286,274:1 registered voters.
        I can top your hyperbole. I think only people who own property should be allowed to vote. You know, people who actually have skin in the game. I own several houses so I should have more votes too.

      • Jack

        That number was similar to the TOTAL number of people allowed to vote in England in 1780, some 3% of the population. It consisted of property owners and a few others which gave rise to rotten boroughs

        Genuine democracy of one man one vote is a relatively recent construct. I think in some cantons in Switzerland women were not allowed to vote until the 1970’s


      • tonyb,
        Thank you for that link. Hey that Thomas Pain guy sure was a trouble maker for the ruling class wasn’t he.
        How is the new Osborne economic scheme playing with the peons over in merry old England? I guess we should wait a few years and see if things get better when you guys leave the EU.

      • … only people who own property should be allowed to vote.

        Too late for that. Government has mortgaged your property. We’re all renters now.

      • Jack

        with a bit of luck the EU will leave US saving us all a great deal of trouble.

        It will be interesting to see how Greece plays out and what effect that will have on the great and the good. Hopefully they will be chastened and realise not everyone is enthusiastic about the ‘project.’


      • tonyb,
        That’s a great plan for the US too – divide and conquer. Once Europe has been shattered we can crush their economies one by one. Maybe we will spare the “City of London” as we have so much in common.

    • Danny Thomas

      Throwing out the baby with the bath water is not in our best interest. W/r/t USFWS: (someone’s got to look at things with “fresh eyes”).

      And who knows from where the next cancer treatment comes (one example). Biodiversity is deserving of consideration:

      • Danny Thomas
        “I’d venture to say that in a person to person informal chat with those who hold the progressive thinking as dear they do so out of a ‘true’ sense of caring for others.”

        If that were true, then why do Progressive programs cause so much destruction? Why do Progressives never apologize, never admit they got it wrong? Why do they ignore the damage they do? Why are they so disinterested in policies and programs that attempt to solve problems without destroying the rule of law and freedom? Why are they so willing to hand over to faceless bureaucracies power that always corrupts and destroys? I think the admonishment by people like Feynman about self-delusion is even more applicable to people who ‘care’ about other people on other people’s dime and energy. Also, the vomit inducing phrase of ‘I want to make a difference’ reveals the soul of some second hander who is empty and wants the adulation and praise of others about how wonderful they are to fill that void. As wise people over the centuries have said: “You want to change the world for the better, start with yourself.” Being the recipient of Progressive caring is like being in a relationship with an abusive spouse who always professes deep love after inflicting bodily and emotional damage.

      • Danny Thomas


        I don’t think ALL progressive programs cause destruction (thinking US here). Having said that, I do think substantial improvements need undertaken. Trying to live myself under the adage of “teaching someone to fish” is so much greater than “giving someone a fish” and bearing this in mind there is much work to be done, but seemingly no real backbone on the part of those labelled progressive nor those labelled conservative to do said work. With this: “As wise people over the centuries have said: “You want to change the world for the better, start with yourself.” I concur completely and try to live personally under that mentality.

        Programs such as the CCC should still be in place today. Time limits for those physically or mentally capable of doing work should be in place for financial assistance. We should offer a ‘leg up’ and not a ‘hand out’. Veteran programs and welfare to work, MMA are among some with positive outcomes.

        I think much of the answers to your well phrased (if a bit biased) questions are that we (American’s) are basically lazy and a bit spoiled. We don’t do the hard work of vetting well our candidates for office. Sound bites rule the day. We don’t have in place systems which disallow the padding of our so called leader’s pockets and for extended time periods. (Applies to both sides).

        Time to jump off this soap box, but there are still many folks out there who have progressive leanings (from my anecdotal experience) who have good hearts and moral compasses. As your moniker implies freedom for all is key. And that includes freedom to fail, but that doesn’t have to lead to being discarded. And that should include the freedom to use one’s own resources via the voice of our votes.

    • Each of these is entirely reasonable, in context. Most of the legal questions surround the extent to which the EPA activities fall under ‘interstate commerce’ or ‘common defense’, two of the constitutional pillars that (at least according to the framers) limit the role of the Federal government. Specifically: 1) Completely uncalibrated species ‘protections’ are sending trillions of gallons of CA water into the ocean; 2) Animal feeding, if it occurs, should fall under USDA; 3) Outreach programs are demonstrably political; 4) The EPA is allowing clear cutting of Carolina and Maine woods to ship to Britain for wood heat while severely limiting options for US residents. One could, of course, write much, much more. In my local harbor, the only gunboat present is owned and run by the EPA. ‘nuf said.

    • Well kiss my grits. After all that hard work gutting, cutting and blocking the EPA, Interior Dept. and Fish & Wildlife in the appropriations budget we now have some neo-Confederate representative blow up the whole thing because he can’t force the United States Government to display Confederate flags at national monuments. Talk about snatching defeat from the jaws of victory!

      “House cancels vote amid fight over Confederate flag”
      “House GOP leaders abruptly canceled a vote Thursday on a spending bill for the Interior Department amid an intraparty split over the display of the Confederate flag…. Boehner said he does not believe Confederate flags should be displayed at federal cemeteries.”

  9. As for government solutions, the carbon tax and cap and trade have yet to provide a single good example of working. In fact, the EU ETS has been an abject failure since its inception in 1997. CA’s trading scheme is just another hidden tax that gets rolled into CA’s general revenues and RGGI has just increased the cost of electricity without providing any real market signals, plus, it makes New England less competitive for business than other regions of the U.S.

    As for a carbon tax, who determines the price point? Political science from the noisy world of energy and environment clearly won’t work.

    In addition, greenhouse gases, auto emissions, airplane emissions, waterways, ethanol, and now aircraft emissions: One can’t help asking where is it written in legislation that the EPA has the power to regulate any one of these areas, let alone all six at once?

  10. RiHo08: I am not as encouraged as you “that the American people will eventually see through the climate scare …” The climate change movement is not at all like Prohibition. Prohibition was an on / off policy, obviously wrong policies were made and then fixed by constitutional reform. The liberal climate agenda has been underway, right or wrong, justified or not justified, for ~20+ years (marking the real beginning at the UNFCCC 1993 Rio convention in which the precautionary modus / call to action was cast in concrete laying down consensus talking points) … and now many world governments are fully on board. You have to admit that good has come from this in terms of energy efficiency improvements etc. To change the course of history needs more than a constitutional referendum, which is a political process. Question: what happens if the policies are allowed to continue, providing improvements in efficiencies, reduction in coal usage etc. accompanied by reduction in CO2 emissions and atmospheric levels, and meanwhile the global temperatures flatten off or drop well below the 1.5-4.5 deg C (per IPCC AR5). Even though it may be unverifiable that the changes are related, and maybe even entirely due to natural climate variations. Ans. the climate change advocates will claim a huge victory saying “see, just like have been telling you all along.” If the models turn out to be absolutely worthless, won’t matter at all.To affect the course of history we need reach a point of understanding of natural vs. manmade forcing cause and effect… and the course of the hiatus in the next few years will have much to do with the outcome of the debate. My opinion is science must provide the answer; but if science cannot clearly and definitively answer the question, this thing will continue on the political (and consensus/opinion poll) path that it has been on. I think we can be optimistic that we have learned much and communicated clearly in the past couple of years on the issues of data/prediction uncertainties and climate sensitivities.

    • Well, if the CO2 rise drops below 2 PPM the global warming scare is over.

      There isn’t any way to get to even 0.5°C at 2 PPM/year. We will run out of fuel before we could possibly encounter a problem. After all the CO2 rise was 2.10 PPM in 1977 and we haven’t set an annual CO2 increase record in 17 years (a period with an over 49% emissions increase).

      • It’s largely over irrespective of how much CO2 rises.

      • PA, your comment is really interesting. Are you saying the CO2 sinks will outperform emissions as fossil fuel production peaks and declines because we are gradually depleting reserves?

        Last night I was sketching a simple model, and it seemed to me the high CO2 concentration enhances the sinks’ ability to sequester carbon. This implies concentration stabilization as we throttle back emissions, which will simply be caused by market forces.

        The question in my mind is whether the world economy will continue to grow as overpopulation, lack of water, and mineral resource depletion cause more conflicts.

      • The question in my mind is whether the world economy will continue to grow as overpopulation, lack of water, and mineral resource depletion cause more conflicts.

        I would argue your cause-and-effect for conflict is inaccurate. Ideological/political conflict precedes (and thereby drives) resource competition — at least if we are discussing matters related to armed conflict. Consider that the United States and the EU compete for resources without armed conflict. But when there is ideological conflict, restricting your enemy’s access to resources is a typical course of action.

        The world economy is probably suffering from the effects of the recent Bubble (despite the relative excess of key resources). Looks like trouble ahead regardless of population, etc.

      • PA, your comment is really interesting. Are you saying the CO2 sinks will outperform emissions as fossil fuel production peaks and declines because we are gradually depleting reserves?

        Pretty much.

        The absorption is basically:
        A = 0.05 * (Cco2-280). [carbon absorbed in GT]

        But because there are anthropogenic and natural influences that can wildly change the CO2 level (fossil fuel emissions isn’t one of them) the curve is pretty noisy.

        At 480 PPM absorption will exactly equal the current level of emissions (10 GT).

        By essentially capping emissions at 10 GT by jawing people to death the global warmers have doomed any chance of CAGW.

      • I would expect that natural sinks – particularly plant growth – will overshoot any leveling off or decline in CO2 output/CO2 atmospheric level.
        The reason is the greening: there are large areas of the Earth where plants are now able to grow, where they were largely not able to before. Wherever plants grow, there is going to be accumulation of living and dead plant matter. Tese new areas should see increasing accumulation.
        Even existing areas of green might increase sinks, but this is less clear (vs. more rapid recycling).

      • About 33% of the land mass is desert. About 28.6% of that is Antarctica. So about 24% of the land area is desert. If you green the desert to the planet average that is 20 GT of carbon out of atmosphere annually.

        If we green the desert that would compensate for much of the rainforest damage. But we really need to get up into the high 400’s or even the 500’s to green the desert. The higher the CO2 level the lower the plant water consumption.

        If we stop burning fossil fuels prematurely we might have to dig them up later and burn them for no reason just so we can grow food in the deserts.

      • Yes, we really should be tracking delta emission over delta concentration. It’d be good to see monthly, seasonally, and annually.

      • I made a neat cartoon graph of co2 con/anthropologist-co2 emissions x 1000 for 1830-2008 last year. Very amusing.

      • Well, Aaron, here is a fun graphic for you.

        The above graphic illustrates the problem.

        Note the graphic says carbon but the data is gigatons of CO2.

        Let’s compute the CO2 level if we weren’t burning down rainforest right and left.

        879 (atmosphere) – 590 (rainforest burning) = 289
        Convert to PPM
        289/3.67/2.13 = 36 PPM (in 2007)
        Actual CO2 level in 2007: 384 (104 PPM increase from 280).

        If we weren’t burning down rainforest like there was no tomorrow the CO2 level would be around 40-42 PPM higher (322-324 PPM).

        This illustrates why, when we running out of fossil fuel and burnable rainforest, to claim we have going to have catastrophic CO2 levels (over 500 PPM) is a little absurd.

      • Partial, working hypothesis.

        CO2 in ice-bubbles begins to dissolve with time and pressure. At a certain pressure range bubbles tend to “equilibrate” to about 280ppm. The ice itself though becomes saturated with a small amount of CO2 (perhaps the equivalent of 30 or 40ppm for typical bubble density in ice), a threshold to the amount of CO2 that can be absorbed from bubbles. As pressure increases the saturation point probably increases, but is still small.

      • aaron | July 9, 2015 at 11:00 pm |
        Partial, working hypothesis.

        CO2 in ice-bubbles begins to dissolve with time and pressure.

        Might be true. But the land plants growth increased 55% since 1900 and the sea absorption is steadily increasing. In fact the increased growth just about balances the amount of rainforest destroyed.

    • Danley Wolfe

      You said: “To affect the course of history we need reach a point of understanding of natural vs. manmade forcing cause and effect… and the course of the hiatus in the next few years will have much to do with the outcome of the debate.”

      I believe the course of history is already altered presupposing of course that a trajectory from a distant point would have led to a different outcome than we have today. EPA and the election of Obama along with his wife, whose brush with Saul Alinsky and Chicago activism, has directed some legal thinkers to consider Executive over-reach as a worthy consideration. And so it is today we thrash and gnash amongst ourselves hoping against hope that nine Justices will solve our dilemma.

      However, it is “We the People…” who are ultimately coerced and bare the burden of our Representatives. It is “We the People…” who will impose limits on environmental activism through our withdrawal of cash contributions, elect reform minded State and Federal Representatives with a mandate to enact legislation that dissolves agencies which have outlived their usefulness and instead have become a menace to “We the People…” A muddled Congress is basically a status quo Congress with the unintended consequence of not restraining an activist Executive Branch. Congress can, and maybe in this instance will have to amend the Constitution to restrain the Executive Branch with its legislation by edict behavior.

      It all starts with “We the People…”

      • RiHo08,
        :We the People…”,
        Have you ever wondered why there is only 1 representative for every 700,000 citizens now? Ether our government is super efficient or something else is happening.

        It all starts with “We the People…”,
        and it ends with “Missiles away Sir!”

    • With the (rather rapid) change in demographics, and the vanishing of the Christian Protestant contingent (and their athiestic offspring) I suspect in a few generations the whole environmental movement will also disappear. At the point is very likely rapid changes in the current geo-political landscape will occur.
      The real question is how the Islamic ideology will view the planet and its relation.

      • So funny. The west obsesses about preserving the future for the children it does not have.

  11. Forget about building blocks – they lead us to a dead end. Forget about the Supreme Court ruling by people ignorant of what carbon dioxide in the atmosphere actually does. In the absence of real science, allowing such scientifically ignorant people to judge the outcome of scientific observations forced them to act on political expediency. This not just stupid but irresponsible of public servants who had full knowledge of carbon dioxide but held it back and distorted it. Such irrational rules are against our national interest. What makes this entire campaign illegal is its reliance on lies about carbon dioxide as a cause of global warming. Their so-called scientific argument is that carbon dioxide in the atmosphere warms the air by absorbing the energy of outgoing infrared radiation. We know that it absorbs it – that is what makes it a greenhouse gas. In 1896 Svante Arrhenius realized that by absorbing that radiant energy carbon dioxide had to warm the atmosphere. That became the basis of the greenhouse law still used by the IPCC. The warming it causes is called greenhouse warming, said to be so dangerous by the global warming pseudo-scientists that we must do everything to suppress the addition of carbon dioxide to the atmosphere. The problem with these pseudo-scientists is that they have been exposed to real climate science but have chosen to reject it and actually blacklist it since 2007. That was the year when Dr. Ferenc Miskolczi published his global warming theory called MGT. First, he points out that carbon dioxide is not the only grteenhouse gas in the atmosphere. Water vapor is also a greenhouse gas and there is ten times as much of it in the air than there is of carbon dioxide. They both simultanrously absorb outgoing infrared vradiation and we must find out what role each of them plays in this joint absorption system. According to Miskolczi, the two gases form a joint optimal absorption window in the IR whose optical density is 1.87. The exact value of this optical density is derived from radiosonde measurements using NOAA records that go back to 1948. If you now add carbon dioxide to the atmosphere it will start to absorb in the IR just as the Arrhenius greenhouse law predicts. But according to MGT, as soon as this happens, water vapor will start to diminish, rain out, the original optical thickness is restored, and no Arrhenius warming takes place. This of course contradicts what Arrhenius greenhouse law tells us. They both cannot be right, hence the Arrhenius law is wrong and must be discarded. To pseudo-scientists contemplating it in 2007 this did not go over well and they simply blacklisted it. You could not talk about it or use it in your work. Experimental proof of it was difficult until the twenty-first century arrived and acwarming pause/hiatus became observable. By now it has lasted for 18 years. There has been no warming during these years while carbon dioxide at the same time kept increasing. And that cinches the case for MGT because that is what it predicts. Arrhenius theory requires warming instead which has been entierly absent. There is one additional observation that needs to be prought in, and that is the existence of a second hiatus in the eighties and nineties. I discovered it in 2008 while doing research for my book “What Warming?” and show it as figure 15 in the book. What happened is that HadCRUT, GISS, and NCDC jointly decided to over-write it with a phony “late twentieth century warming.” This phony warming has been adopted by ground-based temperature sources but fortunately they still do not controm satellites. As a result, you can still download the actual data for this hiatus from both UAH and RSS satellite sources. The gata show complete absence of warming from 1979 to 1997, another 18 year stretch. With two hiatuses at our disposal, we should look at the overall picture. Jointly the two hiatuses have blocked out 80 percent of the warming during the entire satellite era. The remaining 20 percent includes the super El Nino of 1998 and a short warming that starts in 1999. Neither one has anything to do with greenhouse warming. Hence, we can say that there has been no warming whatsoever since the satellite era began in 1979. This kills the AGW. Since there is no warming now there is absolutely no reason for any emission control laws of any kind. Any and all emission control laws suggested are based on false science and must not be implemented. Same for any that were passed previously. I want to emphasize that the consequences of MGT were known to the cabal planning these emission controls since 2007 and were hidden from the public and public officials alike. The conspiracy of covering up the hiatus of the eighties and nineties required cooperation among several pseudo-science groups. Obviously presidential advisers could not be ignorant of this situation either. A fully authorized independent board of inquiry should be established to investigate this conspiracy to deceive the American public about climate change.

  12. Not at all surprised that the public sector law professors yet again allowed their politics to influence their views, whereas the private sector was sceptical.

    It boils down to the old adage: It works in theory but not in practice.
    It might sound good in a law text book, but not in a court room before a jury.

    • jhprince2014

      And as in sound legal professionalism, ethics plays a huge part: Results are not concluded based on (grant) dollars funded to participants prior.

  13. A subjective interpretation of law re 5th Amendment or any
    Constitutional Law to be avoided by an originalism approach,
    as stated by Antonin Scalia, i.e. what was the meaning as
    promulgated, at the time, to the people of the United States?

  14. ‘What I find most interesting is the split between academic lawyers versus nonacademic lawyers…’

    Given enough wiggle room personal biases will emerge-deeply rooted survival mechanisms make sure of this.

    So maybe after a few million years we’ll be able to approach subjects like climate change with the acute objectivity of the more evolutionary advanced IPCC. By the same token however, comment sections like this one will become very boring.


    ‘Originalism’ is the view that there is an identifiable original
    meaning regarding a constitution’s, or statute’s, ratification
    that should govern its subsequent interpretation. Justice
    Oliver Wendell Holmes argued that the original meaning
    was not ‘trying to get into the mind’ of someone who wrote
    a law, but of understanding what the words written meant
    in the mouth of a normal speaker of English in the
    circumstances in which they were used – i.e. how the text
    words would have been understood by a reasonable person
    in the historic period during which the constitution was
    proposed and ratified.

    So, a serf surmises, a law understood at the time understood
    as intended ter prevent centralist authority usurping States’
    powers later being subjectively interpreted fer instance, like
    EPA “noble cause” power grabbing.

  16. My view is that much of this talk about political agendas driving the EPA isn’t inaccurate, but is less of a factor than normal Kafka-esque expansion of bureaucratic power and privilege. The dynamic is no different than that unleashed by Silent Spring – it wasn’t that Carson’s book was totally wrong, it was that the forces unleashed didn’t stop at respecting the Earth but went on to fanatical crusading. It was this crusading which led to the blunt instrument of DDT worldwide bans which in turn led to millions of 3rd world malaria deaths.
    The EPA has done good work in the past – the problem now is that the crusader against air pollution of the ’70s is now seeking ever greater power and privilege by expanding its mandate – much like the original Crusaders went from fighting for the freedom of the Holy Land to feudal barons in Sicily and the Middle East.

  17. Seems to me the EPA is either grossly incompetent or less than honest.

    Increasing the efficiency of coal plants by 6% requires building new, advanced, and highly efficient units , with price tags well over 2 to 3 billion dollars. This in an environment of constantly changing rules. Why would any sane utility want to embark on such a perilous course?

    Increasing the capacity of gas fired units is not possible with the increasing shares of intermittent, unreliable, and mandated renewable energy increasing. The mathematics of the variable grid cannot be ignored.

    The nuclear fleet is aging and increasingly not able to compete with gas fired units. New nuclear units are prohibitively too expensive and a huge financial risk. Again, why would any sane utility want to play “you-bet-your-company” building new nuclear units?

    In my opinion, the EPA is engaging in deliberate, malicious, and premeditated misrepresentations (more commonly known as fraud, which is the M.O. of the Obama regime}.

  18. Since half of all members in congress are lawyers I could say there is a bias right there. Thank you Prof. Curry for connecting the dots.

    • 40% of the members of the 114th U.S. Congress have JDs. Most of those are Democrats, which is more likely the dominant indicator of bias as regards EPA regulatory authority.

      • Know your enemy.
        Would you support a Supreme Court justice that was not a lawyer? The last one we had was over 60 years ago (Robert H Jackson died in 1954). Where is it written that only lawyers are qualified to interpret the constitution? If we triple the size of the house of reps. it might dilute their influence, yes?

      • patmcguinness

        Lawyers are a special interest attached to the Democrat party by reasons of using litigation for their ends. Some of those ends are pure profit (ie tort lawyers) but others are for ‘the cause’. This includes not just various greivance groups but environmental groups.

  19. OT, but we may have found a way to decarbonize China.

    “While all Western eyes remain firmly focused on Greece, a potentially much more significant financial crisis is developing on the other side of world. In some quarters, it’s already being called China’s 1929….”

    Gee, even state-run-capitalist bubbles seem to burst.

    • Given that 78% of US IPOs in 2014 were negative income (i.e. companies that were losing money) – a higher percentage than both the 2000 Internet bubble and the 2007 pre-Global Financial Crisis markets, I’m not sure that the so called “free market” is going to do much better.

      • …78% of US IPOs in 2014 were negative income…</blockquote

        Interesting, but look at the details:

        In 1999, 371 IPOs were tech companies. In 2014 it was 53.

        The biggest gainer in 2014 was biotech, which grew from only 8 in 2011 to 74 in 2014.

        Is it just a coincidence developers of medical products are garnering more gamblers as it becomes certain ObamaCare is a done deal?

        Insurance companies won't be the only beneficiaries of our leader's munificence.

  20. Reblogged this on kingbum78's Blog and commented:
    This is a very interesting and important debate that given the divisiveness of lawyers on this topic I have no doubt it will reach the Supreme Court

  21. When someone truly believes they are doing the right thing it is difficult to get them to reassess the basis of their belief. Leadership at the EPA believe that adding CO2 to the atmosphere will cause environmental problems. The EPA was empowered by the US government. It will take a US Congress and President to agree to legislation to force the EPA to better justify the basis of their determinations that something is harmful prior to implementing regulations restricting its emission.

    Imo, the core of the AGW “debate” is whether there is reasonably reliable evidence to support the “hypothesis” that humans adding CO2 to the atmosphere will result in such rapid warming that this will force changes in the climate that are sufficiently negative for humans to justify restrictions emissions.

    Imo- the “case” to justify the net harmful impacts of CO2 is quite weak. Most of it is based on an expectation of a significant increase in the rate of sea level rise. When you try to get regular posters here to lay out the case that CO2 is harmful, what you get are references to IPCC reports. When it is pointed out that these reports are based on inaccurate models….well that does not seem to matter. Why???

    • Rob, I agree with all your points. But as to the “why?”; “You never want a [made-up] crisis to go to waste” comes to mind. The biggest challenge in the The AGW debate in a large part involves trying to pin down the dividing line between science and politics. A bountiful amount of political propaganda has become homogenized with science, deciphering the distinctions is an endless battle for the average citizen being told their property may be under water in a decade or two. Warmers want to demonize and marginalize skeptics in any way possible to advance the politics, otherwise there would be no public debate, only the typical background arguments among peers about science. Skeptics however want to cleave the politics from climate science and put what warming that has occurred into better understanding and context; but this requires advancing climate science without the luggage and pressures of new world order advocates and green fanatics blocking the path to what might be deemed politically damaging found evidence. It’s been described that climate funding has mostly been for AGW centric science, also that there’s fear to speak out, whether because of job protection or other reasons; this acts as an enabler for forceful criticism and advocacy. These things work against the possibility of advancing science that might potentially damage the juggernaut behind AGW/new world order views; I combine these because they’re inseparable relative to self evident policies that are being advocated for, it’s is why the EPA has been empowered. Societal trust has been lost and there’s attempts to stigmatize all debate.

      • Nice summary. And in the US, appelate courts have been hamstrung on this issue. Their remit is questions of law, not fact. So, whether CO2 is a pollutant is not reviewable, only the legal process by which the EPA may have concluded it was or wasn’t. The misunderstood core of Mass. v. EPA.
        The solution lies in the political arena, hopefully after the 2016 election.

  22. Where does the intellectual and political diversity come from in the climate debate? Certainly not from academia (other than emeritus professors or professors nearing retirement). What little diversity there is comes from think tanks like CATO, privately funded groups like Berkeley Earth, and independent researchers such as Steve McIntyre and Nic Lewis. This is a tiny tiny group of people.

    I thought it was the skeptic position that there was no consensus on climate and that there were many people who disputed the findings of the IPCC.

    • I believe that is a misinterpretation of skeptics outlook. They know there is a consensus and many skeptics (like JC) are part of it. They are just skeptical about bad research papers such as Cooks. The numbers I’ve seen that skeptics refer to are that the consensus (as far as ‘most’) is somewhere between 66% to about 87%.

      Cook admits that his consensus does not include that ‘most’ of the warming is caused by humans. So the definition is reduced to the strict reading of AGW, that is human caused warming. JC as do a lot of skeptics fits in that catagory.

      If you look at wikipedia the paper (Legates) that refutes Cook is all about definitions.'_views_on_climate_change

    • I will say one thing as far as the propaganda war the advocates have won that one hands down. 97% keeps popping up every couple of years either by societies or articles. It’s part of the modern lexicon. Arguing against it is futile and just looks like either sour grapes or downright imbecilic.

      • patmcguinness

        “Arguing against it is futile and just looks like either sour grapes or downright imbecilic.”
        Arging against it is quite fruitful, as it is a faked-up statistic that embodies everything wrong with the alarmist position on AGW.
        1. It expresses a statistic that with even cursory analysis is incorrect (its not ‘97% of climate scientists’ its some number of papers taht dont actually explicitly endorse AGW or not (Cook) or in another survey 75 of 79 of a selected few scientists out of a much large population, rendering the results meaningless.
        2. WHAT it expresses based on the actual data is NOT what is reported.
        As Dr Curry expressed, the ‘consensus’ as defined as belief in the reality of climate change is valid, but is useless in bounding the real scientific questions (such as ‘how much impact does CO2 have?’) or directing policy responses.
        3. HOW the statistic is abused is interesting and fruitful to deconstruct: The studies themselves are solely about belief in CO2 having impact, but its use by alarmists is always to add that CO2 impact on climate is ‘dangerous’ and ‘we must act now’ . But what if the truth is that ‘climate change is real, man’s emissions of CO2 is the largest driver of climate change in the last 100 years, and this impact poses little or no threat to mankind’. What then? What if CO2 impact is such that we will see another 0.7C in the next 70 years (consistent with the last 70 years) and that impact on us is almost nil. So we ‘must act by 2090’ or so to avoid a non-calamity.

        The whole of climate science is like that one statistic: Start with a solid foundation of a few basic facts (eg like with radiative response of CO2), adorn it with flawed statistical methods, make claims that overstate what the science really says, and extend with non-scientific extrapolations and overheated political rhetoric.

        So, please, let’s point out how bad the 97% claims really are and how they respresent what’s wrong with climate alarmism.

  23. The Catholic Church as a “Devil’s Advocate” to investigate and, if possible, find reasons to disqualify a person from being declared a saint. Imagine if, in academia, there were a “Devil’s Advocate Department”, to which all disciplines had to appoint a member, whose job it was to investigate critically – an engineering “test to failure” idea – the assumptions and conclusions of its members?

    Our governments could have a similar service: if the President said that the new health care plan would cost only 1 billion dollars and would save 144,000 lives per year, the DAPpers would look at the numbers and check for reliability. As to its suitability for CAGW …..

    The average person could well use such a group.

  24. It would appear that many of the survey respondents have not read Tribe’s brief. He argues three independent grounds. IMO the strong one is EPA’s statutory construction giving them the claimed authority. To say the EPA’s construction of CCA is novel is an understatement. Tribe is probably right, and his arguement is already wending through the courts.

    • Or as in the liberal professors cases Tribe has already lost a lot of credibility with them. There is probably a lot of uninformed opinion there. They should have asked the question have you researched this?

  25. As the EPA gets closer to issuing its final set of regulations for the
    Clean Power Plan in August, there is a prevailing feeling among most observers that the CPP is a fait accompli, with little room for the loyal opposition to present their case against the urgency of climate change mitigation, the cost of early action, the ability of scientists to predict 85 years into the future, the funding bias of the Study and the overall health benefits of the Clean Power Plan suggested by the recent Harvard Health Study.

    Will the Clean Power Plan really save 57,000 lives a year and save trillions of dollars by 2100 as the new White House report predicts?

    In the end, the Supreme Court will need to answer all of the questions raised the environmental contrarians before it rules on the constitutionality of the EPA’s Clean Power Plan.


    “Never make predictions, especially about the future.”

    Casey Stengel

    • Don’t be so pessimistic. A number of states have said they will not comply. Congress could cut off funding for the threatened EPA alternative funding. And objecting states can ask for an injunction against enforcement until the legality questions are settled; such a temporary injunction (forestalling grave harm until legality of imposing same is clear) are ordinarily granted. The extralegal EPA fight is just hotting up, and the EPA just lost round two at SCOTUS. For round 1, Mass. v. EPA, was not a fair fight. See comment posted above. Fact v. Law problem in all US appellate review. Is why Gruber’s admissions had no impact on Robert’s recent Obamacare ruling.

  26. Please observe a moment of silence for our latest victim of the natural gas industry’s War on Coal – Walters Energy (WLT) has been delisted.
    Born 1946 – Died 2015

  27. It would certainly be interesting to see if the legal academic supporters of the EPA have revenue tentacles attached to such via academic funding sources from such. Let alone retainers. How much “conflict of interest” is in their wallet is the question…….

  28. “As to the pause in warming since 2000, it seems likely that this is the result of a recurrence of the AMO stage that initiated the 1938–1974 pause, the transition from a warming to a cooling AMO [but the EPA doesn’t care].” ~Bruce E. Kurtz (The Effect of Natural Multidecadal Ocean Temperature Oscillations on Contiguous U.S. Regional Temperatures)

  29. I’m curious why they would survey environmental law professors rather than constitutional law professors.

  30. Psst!

    A little background into the current legal battle over the Clean Power
    Plan, working backward:

    • In August, the EPA is prepared to release its final regulations
    using the Driscoll study’s result as a predicate to highlight the need
    for the EPA to take jurisdiction over the entire electrical grid on
    the U.S;
    • The basis for the Supreme Court’s June 29, 2015 MATS ruling was that
    the cost was almost $10 billion to implement, while there was only
    $4-6 million in immediate health benefits;
    • The scholars who participated in the study have already received $45
    million in grants from the EPA;
    • The Study confirms the EPA’s “health benefits” analysis (or as EPA
    spokesman Liz Puchia put it, “this new study supports the EPA
    findings”) or possibly determines the health costs may have been
    underestimated by the EPA;
    • The Study’s co-authors maintained objectivity: Charles Driscoll of
    Syracuse told the Buffalo News that he had “no dog in this fight” and
    Jonathan Buonocore of Harvard told the US News and World Report that
    the EPA did not participate in the study or interact with the authors;
    • The EPA issued the “Peer-reviewed, non-partisan academic study”
    by Charles Driscoll, Jonathan Schwartz et al of the Syracuse Harvard
    health study on June 3, 2015, as per article in Salon;
    • Almost a 100 pages of emails between the EPA and the Driscoll
    Harvard health study group began July 8, 2014 and continued at least
    until May 22, 2015;
    • The EPA’s comprehensive new air pollution, the Clean Power Plan, was
    announced on June 2, 2014;
    • The US Circuit Court of Appeals, April 15, 2014, ruled in favor of
    the EPA MATS’ regulation;
    • On April 11, 2014, the EPA concedes to the Science, Space and
    Technology Committee of the House of Representative that they do not
    have nor can produce all the data the EPA used in justifying its MATS
    or Clean Air rules;
    • The EPA first formulated its MATS regulations 2011.

    Clearly, the Supreme Court needs full disclosure and all material facts from EPA, Harvard and authors of the recent Harvard Health Study before it makes its constitutional ruling on the Clean Power Plan.

    • Congress gave the EPA authority not the SCOUS.

      • No they did not. The essence of Tribe’s ‘EPA rules are unconstitutional’ brief is that the EPA has misconstrued CCA 111(d), contrary to all judicial precedent on statutory construction, which Roberts just reaffirmed in the new Obamacare ruling.
        Is available on line, and well worth reading. Don’t need to be a lawyer to understand what the EPA is trying to do. I have his brief downloaded in my iPad for reference. Am also proud that before he was famous as the foremost constitutional law scholar not on the Supreme Court, he taught me con law. Best course in three otherwise miserable years.

      • Rud,
        Tribe didn’t file his brief motivated by his enlightened understanding of 18th. century constitutional law and an unshakable belief in free market capitalism, he was bought and paid for by Peabody Energy. But it fits well with the general impression that we have the best congress that money can buy. It also means that if someone can make him a better deal he could just as well switch sides again.
        Nobody paid off the Pope.

      • If you think Larry Tribe of HLS can be bought on constitutional issues, you are VERY sadly mistaken. The Koch brothers thing is not in play with him, chaired tenured prof at HLS. Pathetic try on your part.

      • Rud,
        I understand why Peabody went for Tribe – birds of a feather flock together and you seem to share their philosophy of morality and ethics.
        It was Glenn Kellow of Peabody Coal that hired Tribe (not Koch Industries) – Peabody are the same wonderful guys who stuffed their company sponsored pension plans with toxic company stock. Peabody Coal is also the same outstanding example of corporate morality who loaded up it’s subsidiary Patriot Coal with debt and depleted mine works which then went bankrupt leaving thousands of former employees and their families destitute.
        Try typing “Peabody Energy employee law suite” in to the google.

      • Rud
        The SCOUS did not give the EPA the authority, it defined its limits. You can agree or disagree with how that limitation was or might be reached on a particular case.

    • The EPA is a bunch of thugs. Watch this video from Cato. Particularly the parts re. PM2.5

      • Around 30 minutes, it looks like he was saying that unless you dropped dead the same day as high PM2.5 you didn’t count towards the health statistics. He found no correlation between high PM2.5 and people dying the same day. Do you see a flaw in his reasoning? Isn’t it more a long-term accumulating effect than sudden death?

      • That’s not what the EPA says! He was not describing his findings, but recounting those of the EPA.

      • He showed his own findings, and that was his reason for not believing the EPA, so his work was what I described. His presentation was somewhat typical of Cato “science”, which is wrong. Nobody in the audience questioned it either. They need to have someone who has a clue when they go up against the EPA. This serves them no use at all.

      • David Wojick

        I think Cato does good science, Jim D, some of which is mine. Note that EPA’s PM2.5 rules are based on secret science, most of which has never been made public. From what we do know, they use the same kinds of statistical trickery that the climate alarmists use. Green is green.

      • Jim D,

        The 2 main points of the Cato piece and Steven Milloy are:

        1. The EPA has avoided making their data and analyses available for replication or refutation.

        2. Analysis of available data from California by Milloy shows that EPA’s assertions are easily refuted.

        I don’t agree with everything that Cato publishes, but in the areas of Global Warming and Environmental Regulation they do a lot of very useful work.

        David Wojick,

        I have read your recent report on Federal funding induced biases and found it very interesting. What are the plans to use the framework?

  31. Rob,

    You mean the teenie, tiny crack of silence between 111 d and 112. Congress and the Supreme Court have allowed the EPA to methodically take control of energy and the environment in the U.S. over last two decades. A federal agency founded in 1970 with 20,000 bureaucrats and a $8.2 billion annual budget can replace the multi-trillion dollars of human and infrastrure capital invested in the U.S. electrical grid over the last 130 years seems wrong on so many levels.


  32. “Where does the intellectual and political diversity come from in the climate debate? Certainly not from academia (other than emeritus professors or professors nearing retirement). What little diversity there is comes from think tanks like CATO, privately funded groups like Berkeley Earth, and independent researchers such as Steve McIntyre and Nic Lewis. This is a tiny tiny group of people.”

    Ivar Giaever is a man of great courage and strong convictions:

    • Yes. Resigned APS previously over the same issue. Of 65 Lindau Nobleists, one of 35 who did not sign the Maineau petition that garnered so much PR.

      • An for that he is being pillloried by Progressives and Greens as a tottering, incompetent, out of touch delusional old man. He knew that the attacks would come and yet he still spoke up, willing to suffer the slings and arrows, and the attempts to tarnish his work and life. That is courage.

      • PeteBonk,

        Progressives and Greens specialize in ad hominem attacks on those that don’t toe their line. It’s a sad thing when scientists like Giaever, Dyson and Lindzen (to name just a few) are attacked because of their age.

  33. Mark

    To do worthwhile reseach you need knowledge, access to information, time and resources. The last translates into money. The number of sceptics outside of academia I.e independent researchers that fit all the criteria is tiny. Nic Lewis, a charming man who I met last year, is independently wealthy which,as mosh would say, enables him to join the debate by publishing papers.

    There is no funding for independent sceptics so consequently the number of diverse papers will continue to be tiny.


    • Tonyb,

      This deplorable situation isn’t going to change any time soon. The next best thing is for people like Giaever to holler BS in order to try to stop the fanatics from getting the politicians to do st-pid things. Less than half of the Nobel Laureates attending the forum signed the alarmist statement that was promulgated at the forum. That is progress.

    • How could we crowd-fund capable citizen skeptics? How would one be vetted to receive funds?

  34. JD Ohio?

    • Interesting that even the Republicans are saying Obama needs to do more to meet his climate goals. That’s a twist. What are they up to?

      • Danny Thomas

        Maybe so! Interesting to see what just may occur should a bit of inclusiveness and moderation become injected in the conversation.

        What are they up to?

      • David Wojick

        That is not what Inhofe & Co are saying, Jim D, not even close. Where did you get such a strange idea? They are saying that they will never agree to it and it is illegal.

  35. The green activist lawyers will say we need more solar and less Fossil Fuels, whilst the fossil fuel industry will fight for more allowance.
    What is lacking is the fight for reason. That would be for the source which is both non fossil and as vast in scope.
    Why take a chance on excess CO2 not being dangerous to the entire biosphere?
    However, We can not allow the very real threat of excess CO2 to enforce the very real possibility to restrictions on liberty.
    The number one priority to prevent is the outcome which comes first, which is in this case, be the infringements of rights.
    Not to say more severe in overall time, though. Living with less energy and, finally, outright energy poverty (and even worse) can be argued to still be second compared to fossil fueled depletion into an overheated and poisonous biosphere – especially by those born into the altered biosphere. It is even possible for accelerating FF combustion to cause mass die offs according to many hypotheses (since excess CO2 has been linked to ocean anoxic events many millions of years ago).
    I suggest that we are willing to recognize the merits of BOTH “sides”, to not become polarized towards either, except to become all out nuts for thee better solution: PLENTIFUL (non carbon) ENERGY (based on the molten salt reactor concept).
    What we need is “tech fix lawyers”!

    • fireofenergy,
      I like your user name.
      One could argue that the moment human mastered fire we made the first evolutionary leap from just another hominid species to our current status as the dominate life form. Maybe moving beyond fossil fuels with launch us to the next level?

      • Thank you, got that name over ten years ago.
        I certainly hope that fossil fuels will be used to build to the next level that could then build itself.
        I see the AGW debate as mostly an inhibitor to that end because skeptics don’t seem to really care about innovation beyond FFs and that believers don’t seem to understand the work, call it industrialization, that is really required to actually replace FFs. Instead, many side with the environmentalists that would inhibit our energy, and thus, our personal liberties.
        I believe that advanced nuclear is “the easy way”.
        And that it is possible to provide enough energy for a still developing world with wind and solar when mass battery manufacture with a high energy returned on investment is perfected. Machine automation without much profit is key.
        I also believe there is nothing wrong with efficiency and a redirection towards passive solar principles, and gardening.

    • Your website needs a lot of work. You need links right in the text to support your statements, either to notes at the bottom, or directly to sites with better explanation and demonstration of the point you make.

      While I’m not completely opposed to nuclear fission, I see two problems with it as a central strategy: the enormous difficulty overcoming an existing cultural aversion to the risks (which men can feel in their test1cles, women in equivalent), and the likelihood that fission will soon become completely cost-ineffective compared to solar.

      The cost of solar PV, measured as, say, cell or module price at the factory gate, has been dropping exponentially in response to exponential volume increases, technological developments, and learning curve. If it continues, and support-structure costs follow, in response to increased price pressure as they become a higher fraction of total cost, the cost of solar energy when the sun is shining will become so low that the primary cost of using it to support total demand will be storage.

      Probably within 1-2 decades, at current growth rates. However, various types of political/policy actions could retard, or increase that exponential cost reduction.

      Storage using pumped hydro is currently already far cheaper than nuclear, assuming trivial costs for intermittent solar energy. The major problem is finding appropriately sited reservoirs, which is entirely a problem of perceptions. Potential technological solutions in this space abound.

      Finally, I’d like to address one quote from your site:

      300 x 10 billion people = 3 million square kilometers or over 1.1 million square miles! This is actually over 2% of the Earth’s land space.

      This is also a problem of perceptions: according to Wiki,

      Under the FAO’s definitions above, agricultural land covers 33% of the world’s land area, with the FAO’s arable land representing less than 1/3 of that or about 9.3% of the world’s land area.

      Why, when you stop to think about it, should we cavail at using 2-3% of “the Earth’s land space” for energy, when we’re using 3-5 times that amount for agriculture? Rather than thinking in terms of “energy factories”, why not think in terms of “energy farms”?

      And those “energy farms” don’t need to use land that could otherwise be used for agriculture, in fact, they don’t need to use land at all. Plenty of ocean available.

      • Thanks for the positive criticism.
        I’m kinda under the fear that such large amounts of land being used for solar might disrupt bio diversity. We already paved over large amounts of land. Desert solar needs to ditch the bulldozing and fences. Technology should allow for that. Also, solar tech should improve to become more efficient so that it’s not so hot. If only 15 percent is converted to electricity then the rest is converted to infrared, which wouldn’t be a problem at the global level but might be serious at the more local level.
        I prefer the molten salt reactors over existing nuclear reactors simply because no high pressures and more efficient, and less wastes to confine. If closed cycle, then for only 400 years.

      • I’m kinda under the fear that such large amounts of land being used for solar might disrupt bio diversity. We already paved over large amounts of land. Desert solar needs to ditch the bulldozing and fences. Technology should allow for that.

        That’s from Cool Earth Solar, an idea using aluminized plastic film for CSP. AFAIK it’s on hold right now, but a similar process could be used with 2-axis tracking with flat thin-film (or light-weight silicon). Note the towers: the poles and guys could probably be made very non-disruptive, as well as reducing the cost of installation. (Towers would have to be made of something other than steel, though.)

        If only 15 percent is converted to electricity then the rest is converted to infrared, which wouldn’t be a problem at the global level but might be serious at the more local level.

        Actually, IBM has water cooled CSP (~2000x IIRC) that could be used for a second stage desalination. And the albedo wouldn’t be significantly different from ocean surface.

        IMO the best way (so far) is to use inflated plastic film, with 2-axis trackers inside. The modules could be large thin-film with heat-pipe cooling, which could be very light-weight, and cheap to manufacture with learning curve and economies of scale. If they are on poles sticking out of the ocean, that water would be available for cooling. The modules and tracking mechanisms would be protected from the environment, and plastic film is cheap to manufacture. The tracking mechanism could be very light-weight, mass-manufactured out of plastic (foam and strands).

        Another option would be to have an overhead system like in the picture above over farmland. The density could be kept low enough to not impact productivity (20% zenith coverage?), and it would be right there where access is already provided. Of course, some way would have to be found to eliminate the mess of guy wires, but I’d guess solid poles could be plowed (etc.) around with the right planning.

    • “Why take a chance on excess CO2 not being dangerous to the entire biosphere?”

      So in your view, an individual “A” should be able to limit the activities of another individual “B” if they believe that “B”s activities are dangerous?

      Isn’t it more reasonable to grant “A” that authority after they have demonstrated that the actions of “B” were actually harmful and not actually a benefit?

      • Rob,

        If I read him correctly, he’s not saying that. Rather he is saying that protecting against infringement of individual rights is the more immediate issue.

      • Sidestep all that. Just develop clean energy. I’m not saying we can’t all drive cars, etc. I’m saying to use the fossil fuels to develop the next and better step – before they become too expensive.
        Solar, advanced nuclear, etc. The intrinsic costs would be lower without all the excess regulations, cost of liability, etc.
        I’m saying to ditch the lawyers that want to cut our energy and also to ditch the lawyers that would prevent advanced nuclear, etc.
        The only way to fossil free is NOT by regulation but by clean energy industrialization. We’ll need some lawyers for that!

  36. JCA “What I find most interesting is the split between academic lawyers versus nonacademic lawyers, with a substantial majority of academics finding it legal and a substantial majority of nonacademic lawyers finding it illegal.”

    Not very surprising to me. Law Professors tend to be self-deluded souls with academic skills and no grounding in reality. For instance, I recently received OSU’s Law Alumni magazine, and , not surprisingly, one of the main thrusts of the issue was OSU’s commitment to “diversity.” This is plain silly and clearly wrong. I felt like writing the dean who wrote the article and asking him how many fundamental Christians were on the faculty. (I am an atheist by the way). I know the answer is probably zero, but whatever it is, it is far below the percentage of people in the U.S. who are fundamentalist Christians. When academics say they favor diversity what they really mean is that they favor big government and doling out money and favors to those who tend to favor big government and leftist policies. They do not have the ability to consider or reflect on their own potential bias or logical inconsistency. So, in terms of professionalism and the ability to actually perform legal tasks, I would place law professors as being low on the totem pole.

    What does distinguish the legal academic community from the academic warmists is that maybe 20% of legal academics are sincere believers in real freedom of speech and in the exchange of contentious ideas. I would say in the warmist academic world maybe 1% of the professors believe in the exchange of contentious ideas. Because there is a significant minority of legal academics who believe in free speech, the mind control tactics of warmists don’t work as well in law schools.

    Also, for the same reasons that consensus science does not mean correct science, consensus law does not mean correct law. For instance, I can think of very few policies as stupid or harmful as school busing, yet it was approved by the Supreme Court on a 9-0 vote. (Swann v. Charlotte-Mecklenberg)

    Just as there are many ideologues in the field of climate science, there are many in the legal academic community. However, a significant minority of academic lawyers are genuine believers in freedom of speech, which is not the case with scientists employed by universities who perform climate research.


  37. One of the interesting things about the recent SCOTUS decision in the Obamacare case was that the majority opinion was not based on the so-called “Chevron Deference” in which the judiciary defers to any interpretation of a regulatory agency when the statute is determined to be ambiguous by the court. Roberts, instead, ruled the corresponding clauses ambiguous, and then decided that Congress itself intended the actual outcome. This has two effects, one of which angered conservatives (for example, a Republican Administration after 2017 can’t reinterpret PPACA to rule out subsidies since it is the court decision itself that interpreted the law, not the IRS); however, this curtailing of Chevron sets the stage for over-ruling agency interpretations, such as the Clean Air proposals targeting CO2. The EPA may well lose any cases that reach SCOTUS with its present make-up.

  38. Oh, and that last part in the quoted section is a bit of a false hope on the part of the author- the philosophical breakdown of the court, even though it is made up primarily of former professors, isn’t likely to mirror what you find in academics. For example, Scalia was once a law professor.

  39. An example of your government at work:

    ACTION: Final rule.

    SUMMARY: We, the Fish and WildlifeService (Service), amend the regulations… [as] necessary and advisable to provide for the conservation of the polar bear (Ursus maritimus). The special rule, in most instances, adopts the existing conservation regulatory requirements under the Marine Mammal Protection Act of 1972… as the appropriate regulatory provisions for this threatened species. ~Federal Register /Vol. 73, No. 242 /Tuesday, December 16, 2008 /Rules and Regulations

    Is it any wonder we’re all headed toward Greekruptcy with our eyes wide-open at 10 trillion times the speed of sea level rise?

  40. Pooh, Dixie

    Not Legal; Corrupt. EPA+Environmentalists = Political Corruption of Regulators. “Progressivism” was sold as “disinterested” regulation.
    Now, it is the citizenry being sold (down the river).
    Weber, Joseph. “Emails Show Party Planning and More between EPA Official, Environmental Groups.” Text.Article., July 9, 2015.

  41. From Cato …

    Air Farce: The EPA’s Regulatory “Science” on Airborne Particles

    The EPA’s most costly air-pollution and global-warming regulations are justified by the belief that small particles in outdoor air, like soot and dust, kill people. Based upon internal EPA documents and original research, Steven Milloy, publisher of the widely read blog, will demonstrate that the agency’s belief does not pass scientific muster. As has been the case with climate change research, the dangerous liaison between regulatory agencies and academia has again resulted in a substantial distortion of reality. Please join us for a probing critique of science in service to regulatory overreach.

    “Harvesting statistical noise.”

  42. Pingback: Weekly Climate and Energy News Roundup #187 | Watts Up With That?

  43. Pingback: JC’s conscience | Climate Etc.

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