Tune in to 88.7 Houston Public Media today at noon CT. I’ll be on for about 30 minutes talking about the ongoing debates over the Ashby High Rise. You can listen to the podcast later at HoustonMatters.org.
Tune in to 88.7 Houston Public Media today at noon CT. I’ll be on for about 30 minutes talking about the ongoing debates over the Ashby High Rise. You can listen to the podcast later at HoustonMatters.org.
Will Baude has drawn attention to Justice Scalia’s curious practice of labeling his section headers in opinions. In EPA v. EME Homer City Generation, L. P. Section I.D. is titled:
D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority
“Plus Ça Change” is loosely translated as the more things change, the more its the same thing. Ask Justice Breyer to pronounce that.
So citing French law–bad. Citing French idioms–good!
Read through Scalia’s dissent in EPA v. EME Homer City Generation, L. P., which he has read from the bench. He is not happy here. His opinion begins:
Too many important decisions of the Federal Govern ment are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress. With the statute involved in the present cases, however, Congress did it right. It specified quite precisely the responsibility of an upwind State under the Good Neighbor Provision: to eliminate those amounts of pollutants that it contributes to downwind problem areas. But the Environmental Protection Agency was unsatisfied with this system. Agency personnel, perhaps correctly, thought it more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions.
Today, the majority approves that undemocratic revi sion of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply ex tends cost-benefit analysis beyond the scope of the alleged gap.
Additionally, the majority relieves EPA of any obligation to announce novel interpretations of the Good Neighbor Provision before the States must submit plans that are required to comply with those interpretations. By accord ing the States primacy in deciding how to attain the gov erning air-quality standards, the Clean Air Act is preg nant with an obligation for the Agency to set those standards before the States can be expected to achieve them. The majority nonetheless approves EPA’s promul gation of federal plans implementing good-neighbor benchmarks before the States could conceivably have met those benchmarks on their own.
I would affirm the judgment of the D. C. Circuit that EPA violated the law both in crafting the Transport Rule and in implementing it.
And lol, Grant’s tomb:
In the example given by the majority, ante, at 21–22, when each of three upwind States contributes 30 units of a pollutant to a downwind State but the reduction required for that State to comply with the NAAQS is only 30 units, how will responsibility for that 30 units be apportioned? Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb. If the criterion of responsibility is amounts of pollutants, then surely shared responsibility must be based upon relative amounts of pollutants—in the major ity’s example, 10 units for each State.
And he “dissent[s].” Not respectfully.
Addressing the problem of interstate pollution in the manner Congress has prescribed—or in any other manner, for that matter—is a complex and difficult enterprise. But “[r]egardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its author ity ‘in a manner that is inconsistent with the administra tive structure that Congress enacted into law.’” Brown & Williamson, 529 U. S., at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988)). The major ity’s approval of EPA’s approach to the Clean Air Act violates this foundational principle of popular government.
I dissent.
Not the quotation I was expecting from a Ginsburg opinion on the Clean Air Act:
Further complicating the problem, pollutants do not emerge from the smokestacks of an upwind State and uniformly migrate downwind. Some pollutants stay with in upwind States’ borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.” The Holy Bible, John 3:8 (King James Version). In craft ing a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.
The United Church of Christ has filed suit against North Carolina’s ban on same-sex marriage, alleging that it constitutes an infringement on the Free Exercise clause. The New York Times has the story.
Here is the key paragraph from the complaint. They assert that the laws violate the rights of the ministers to officiate and solemnize same-sex marriages (105) and the right of the couples to become married in the tradition of their faiths (106).
104. The North Carolina Marriage Laws make it a criminal offense for any “minister, officer, or any other person authorized to solemnize a marriage under the laws of [North Carolina],” to solemnize the marriage of a same-sex couple. N.C. Gen. Stat. § 51-7.
105. Plaintiffs are (1) a religious denomination, (2) ministers, and (3) congregants whose religious teaching and beliefs embrace same-sex marriage and allow such couples full access to the marriage rites of that faith, solemnizing and celebrating their marriage.
106. Under North Carolina law, the Clergy Plaintiffs are prohibited under threat of criminal prosecution from performing any such religious ceremonies, and the Couple Plaintiffs are prohibited from becoming married in the tradition of their respective faiths. Such laws violate the First Amendment’s Free Exercise Clause.
107. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature, subject them to criminal sanctions, and cause irreparable harm by burdening the free exercise of religion without any justification, let alone a compelling one.
108. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as requested in this Complaint.
They also raise a Expressive Association claim, as well as the standard litany of due process and equal protection claims. Arnold & Porter is on the briefs.