4 ms·

> We need legislation We thought we had it, though. The whole idea behind the EPA's charter is that it's empowered to regulate harmful materials for the benef

by ajross 3y ago

> We need legislation We thought we had it, though. The whole idea behind the EPA's charter is that it's empowered to regulate harmful materials for the benefit of public health and the environment. This is a technicality (letter, not spirit) legal argument the court is making: the chemicals in question have a long history in industry, because when they were introduced we didn't know they were bad. Now we do, and the EPA banned them. But no, say the clever supervillains on the Fifth Circuit: the specific rule under which the EPA issued the ban was intended for new processes, not old ones. So they have to issue a different regulation under a different statute. Which they totally have the legal power to do, but because they didn't do it exactly right the court says the whole ban is ejected and we can go right back to making poison. A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place for obvious reasons. But... yeah, this is the fifth circuit.

gigatexal 3y ago
And if the Supreme Court screws us with the chevron doctrine we are screwed.
badwolf 3y ago
Saw the headline and immediately thought "more 5th circuit bullshit again?" and was not wrong. Ugh.
fngjdflmdflg 3y ago
>A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."
- rincebrain 3y ago
  Judges have a _lot_ of leeway. They don't usually do it, but the scope of what they _can_ do has historically been broad. Transiently keeping a ban seems pretty plausible as a possible outcome, to me. (I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.) [1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-criminal-sentences/Slumlord-ordered-to-live-in-his-own-building https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/york-county-defendant-welcomes-biblical-penance/article_ae1f5f04-2d1f-576e-ade2-3217366d270c.html https://www.postandcourier.com/features/faith_and_values/yor...
  - fngjdflmdflg 3y ago
    Were these cases about what the law says or what the repercussions are for breaking them? I don't think there is much leeway in terms of the former. Technically a judge can acknowledge that a law is unconstitutional without ordering the law not be enforced, but to my understanding it is still not enforceable even in that case. In any event I think you should read the actual opinion here because you seem to be making out the court as something it really isn't, at least in this case. In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is. [0] http://realneo.us/system/files/HousingJury20100723135802-1.pdf http://realneo.us/system/files/HousingJury20100723135802-1.p...
rayiner 3y ago
The EPA can only do what Congress says it can do. The law Congress wrote deliberately creates a distinction between existing uses and new uses. And the law deliberately makes it harder to ban an existing use than a new one. The environmental laws are full of those distinctions. For example, under the clean air act, the emissions control technology you need to use for new emitters is different than for existing emitters. Congress doesn’t like to disrupt industry because voters care vastly more about jobs than they do about the environment. Why would it be “reasonable” for a court to leave an illegal agency order in place? That seems like the opposite of reasonable—that sounds like lawlessness.

by ajross 3y ago

gigatexal 3y ago

And if the Supreme Court screws us with the chevron doctrine we are screwed.

badwolf 3y ago

Saw the headline and immediately thought "more 5th circuit bullshit again?" and was not wrong. Ugh.

fngjdflmdflg 3y ago

>A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."

rincebrain 3y ago
Judges have a _lot_ of leeway. They don't usually do it, but the scope of what they _can_ do has historically been broad. Transiently keeping a ban seems pretty plausible as a possible outcome, to me. (I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.) [1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-criminal-sentences/Slumlord-ordered-to-live-in-his-own-building https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/york-county-defendant-welcomes-biblical-penance/article_ae1f5f04-2d1f-576e-ade2-3217366d270c.html https://www.postandcourier.com/features/faith_and_values/yor...
- fngjdflmdflg 3y ago
  Were these cases about what the law says or what the repercussions are for breaking them? I don't think there is much leeway in terms of the former. Technically a judge can acknowledge that a law is unconstitutional without ordering the law not be enforced, but to my understanding it is still not enforceable even in that case. In any event I think you should read the actual opinion here because you seem to be making out the court as something it really isn't, at least in this case. In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is. [0] http://realneo.us/system/files/HousingJury20100723135802-1.pdf http://realneo.us/system/files/HousingJury20100723135802-1.p...

rayiner 3y ago

The EPA can only do what Congress says it can do. The law Congress wrote deliberately creates a distinction between existing uses and new uses. And the law deliberately makes it harder to ban an existing use than a new one. The environmental laws are full of those distinctions. For example, under the clean air act, the emissions control technology you need to use for new emitters is different than for existing emitters. Congress doesn’t like to disrupt industry because voters care vastly more about jobs than they do about the environment. Why would it be “reasonable” for a court to leave an illegal agency order in place? That seems like the opposite of reasonable—that sounds like lawlessness.