“Appropriate and Necessary” Is Whatever We Say It Is

Mises Daily | Mises Institute.

patronizing April 4, 2015Gary Galles Tags The EnvironmentHealthInterventionism The Supreme Court has recently heard oral arguments in Michigan vs. EPA challenging regulations slashing mercury emissions from fossil-fuel power plants. However, the central issue was not, as commonly represented, preventing harm from mercury. The central issue is the use of mercury as a bait-and-switch excuse for more stringent restrictions on fine particulate emissions. The EPA utilized what Justice Scalia called “a silly way to read” the law to do what Chief Justice Roberts described as an “end run” around its statutory limits, and the case well illustrates how government agencies are able to use open-ended legislation to get whatever they want. The 1990 Clean Air Act amendments instructed the EPA to study whether mercury exposure posed a health hazard that would make restricting it “appropriate and necessary.” Justification therefore first required demonstrating harm from mercury. That proved impossible to do honestly. CDC surveys showed blood mercury levels for American women and children falling and already below the levels found safe by the EPA, FDA, and WHO. The EPA even rejected a high mercury exposure study simply because it found “no observable health effects.” So they cheated. The EPA instead constructed a model of hypothetical women that “consume extreme quantities (99th percentile) of the most contaminated fish from the most contaminated bodies of water,” according to one amicus brief. It then added on a 50 percent “cooking adjustment factor.” It then estimated “the potential effect of this exposure on their hypothetical children’s neurological development in utero.” Given that power plants add a very small fraction to mercury deposition, that effect was minuscule. Even after more eye-glazing assumptions to inflate the damage, the estimated economic gain from reducing exposure to mercury was $6 million or less annually. Ignoring the Costs of Regulation However, the EPA then estimated that its “solution” to mercury emissions of fossil fuel power plants would cost $9.6 billion annually. That 1,600 to 1 disproportion clearly puts the lie to any assertion of those mercury regulations as “appropriate and necessary.” So the EPA sidestepped that minor detail by asserting they were not required to consider costs in coming to a health hazard determination. But there is no way to know whether a regulation is appropriate (or sensible, suitable, or proper) in the absence of a consideration of the costs. Both the word itself and the reality that every choice imposes a cost means that costs are undeniably relevant. One might also mention that “arbitrary and capricious agency action” on the part of the EPA and other government agencies impose separate costs of their own on society. The Legal Gift That Keeps on Giving Having supposedly justified regulating mercury by creatively “finding” benefits and ignoring the costs, the EPA turned to what has become their “go-to” mechanism for finding that their policies’ benefits outweigh their costs — fine particulate pollution. Virtually every dollar of benefits they estimated from mercury reduction ($36 to 89 billion annually, though using very misleading methodology) actually comes from reduced fine particle emissions, not mercury reductions. However, the EPA has regulated fine particulate pollution for thirty-five years under Sections 108-110 of the Clean Air Act, as part of the National Ambient Air Quality Standards (NAAQS). And under Section 109, the EPA already sets national ambient air quality standards that, “allowing an adequate margin of safety, are required to protect the public health.” If the federal fine particulate standard they set in 2013 is “adequate to protect public health,” how can the benefits from further reductions in fine particulate emissions be tens of billions of dollars yearly? They can’t. Legal Entrepreneurship by Government Agencies So why does the EPA want to stack the mercury restriction deck with a fine particulate wild card? Because under NAAQS, they can set a standard for fine particulates that states must meet, but states determine how to meet them. The EPA cannot single out coal-fired power plants as their intended “victims.” Further, they cannot dictate the form or extent of their victimization. But if they can employ minuscule or imaginary mercury damage as an excuse, and dress up tighter fine particulate restrictions on power plants as if they addressed mercury damage, they can ramp up their limited power to determine fine particulate standards into almost unlimited direct command and control over whoever they choose to target, even though the Clean Air Act denies them such power. In other words, the law as passed by Congress provides so many options and so many tools to the EPA, that it’s only a matter of mixing and matching different pieces of law to target whomever they want to get whatever they want. The mercury “backdoor” the EPA is claiming, continuing an ongoing pattern, shows their intent to increasingly get whatever they want regardless of what the law may say. Image source: iStockphoto Note: The views expressed on Mises.org are not necessarily those of the Mises Institute. Creative Commons Licence 16


Supreme Court Issues 2nd Amendment Blow – Jan Morgan Media

Supreme Court Issues 2nd Amendment Blow – Jan Morgan Media.

Today the U.S. Supreme Court decided to allow lower courts to continue rubberstamping any and every kind of law that violates the 2nd Amendment.

In a major announcement this morning, the Supreme Court refused to hear Drake v. Jerejian, a case challenging the constitutionality of New Jersey’s arbitrary rules governing the right to carry handguns in public for purposes of self-defense.

The lawyer behind the case is Alan Gura, the civil rights litigator who previously argued and won both Heller and McDonald before the high court. In an interview with me last month, Gura explained his reasons for bringing the Drake case. “We’ve seen courts rubberstamp just about any kind of law that violates the Second Amendment,” he said, describing the legal climate in the wake of Heller and McDonald. “Unless the Supreme Court decides to enforce its pronouncements, the Second Amendment will apply only to the extent that some lower courts are willing to honor Supreme Court precedent.”

It now appears the Supreme Court is content to let the lower courts keep rubberstamping away.

Drake v. Jerejian deserved the high court’s attention. At issue was New Jersey’s Handgun Permit Law, which requires applicants to prove they have a “justifiable need” before local officials will issue a handgun carry permit. Unlike those states that maintain a “shall issue” permit regime, where applicants are required to satisfy a clear list of objective criteria, such as completing a firearms safety course and passing a criminal background check (if you meet the qualifications, the government “shall issue” you a permit), New Jersey grants local officials wide leeway in determining what qualifies as a “justifiable need” in their respective jurisdictions.

The practical effect of that wide leeway has been the overwhelming denial of permit applications by local officials. In the words of state Sen. Jeff Van Drew (D-Cape May), “It’s virtually never done.”

“Americans are not required to justify their need to exercise a fundamental right,” Gura stressed in his interview with me. “If the government can force you to provide a reason to exercise your right, then it’s no longer a right.”

The U.S. Court of Appeals for the 3rd Circuit, by contrast, which ruled against Gura in 2013, saw no constitutional problem with the state’s licensing scheme because it “does not burden conduct within the scope of the Second Amendment.”

By refusing to hear the Drake appeal today, the Supreme Court left that ruling by the 3rd Circuit undisturbed. Yet in 2012, the U.S. Court of Appeals for the 7th Circuit, in Moore v. Madigan (another case brought by Alan Gura), reached the opposite conclusion, voting to strike down Illinois’ blanket ban on carrying guns in public. “The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside,” the 7th Circuit held.

The Supreme Court should have tackled that circuit split head on. Because it failed to do so, the Second Amendment now means one thing for responsible gun owners living in New Jersey and another thing for those living in Illinois.

Read more here
Read more at http://janmorganmedia.com/2014/05/supreme-court-issues-2nd-amendment-blow/#gUEgHDELDAcVWWMP.99

Judge Napolitano on the Worst Supreme Court Decisions – Judge Andrew P. Napolitano – Mises Daily

Judge Napolitano on the Worst Supreme Court Decisions – Judge Andrew P. Napolitano – Mises Daily.