[✔️] November 5, 2021 - Daily Global Warming News Digest

👀 Richard Pauli richard at theclimate.vote
Fri Nov 5 11:27:04 EDT 2021


/*November 5, 2021*/
/
//[ 20 min video report COP26 ]/
*Nick Breeze ClimateGENN*
In this episode of Shaping The Future I am inside the COP attending 
talks and speaking mainly to scientists but also half listening to the 
pledges and commitments being made. What is striking is the sense of 
foreboding from people who have followed these negotiations for many years.
Contents:
00:00 Intro by Nick Breeze
01:00 John Kerry speaking to C40 mayors
01:23 Professor Richard Bamba (excerpt)
https://www.youtube.com/watch?v=5GcSxVHAxW0



/[BBC reports]/
*Climate change: Carbon emissions show rapid rebound after Covid dip*
By Paul Rincon - Science editor, BBC News website
Published 11-4-21
The amount of planet-heating gas released in 2020 fell by 5.4% as the 
pandemic forced countries to lock down.

But a scientific report by the Global Carbon Project predicts CO2 
emissions will rise by 4.9% this year.

It shows the window is closing on our ability to limit temperature rise 
to the critical threshold of 1.5C.

This rise in carbon dioxide (CO2) released into the atmosphere 
underlines the urgency of action at summits like COP26 in Glasgow, 
scientists say.
https://www.bbc.com/news/science-environment-59148520

- -

/[ Poignant action, polite speech ]/
THE COP26 SUMMIT
*A 15-year-old girl invented a solar ironing cart that's winning global 
respect*
November 3, 2021
SUSHMITA PATHAK
Vinisha Umashankar and her solar ironing cart. She came up with the idea 
when she was 12 — then worked with engineers to create a prototype. Now 
she's in Glasgow, Scotland, to speak at the COP26 climate change conference.

Vinisha Umashankar was returning to her home in southern India from 
school a few years ago when she saw a man throwing away burnt charcoal 
on the side of the street.
He was an ironing vendor who pressed people's clothes for a living – and 
his main appliance was an old-fashioned iron box, which he filled with 
hot charcoal that emitted a cloud of smoke. Umashankar counted at least 
six such vendors in her neighborhood in the temple town of 
Tiruvannamalai alone. She started thinking about how this was happening 
across India, where the ironing vendor is a fixture.

"It made me think about the amount of charcoal burnt every day and the 
damage it does to the environment," says the 15-year-old. Producing and 
burning charcoal emits particulate matter that pollutes the air and 
releases greenhouse gases such as carbon dioxide, which contributes to 
climate change.

So Umashankar came up with an idea. Instead of using charcoal to heat up 
the irons, the vendors could use something abundantly available in 
India: the power of the sun. Over the span of six months in 2019, when 
she was just 12 years old, she designed a cart that had solar panels to 
power a steam iron. She pored over college-level physics textbooks to 
get an understanding of how solar panels work. Then, she submitted her 
concept to the National Innovation Foundation, run by the Indian 
government. Engineers there helped her build the full-scale working 
prototype and apply for a patent.

And so the Iron-Max was born. It's a blue-painted cart shaped like an 
iron box with solar panels fitted on its roof. It's attached to a 
bicycle to allow vendors to move through the neighborhood to collect 
clothes to press. Five hours of bright sunshine is enough to operate the 
iron for six hours. The energy can be stored in a battery to provide 
power on cloudy days. The cart also has a coin-operated cellphone and a 
cellphone charging point where people can pay to recharge their phones 
to supplement vendors' earnings...

        [ Poignant speech ]
        *Vinisha Umashankar | World Leaders Summit #COP26*
        Nov 2, 2021
        Earthshot Prize
        The remarkable 15-year-old Vinisha Umashankar, Earthshot Prize
        Finalist to Clean our Air, addressed World Leaders today at #COP26.

        In her powerful speech updating
          President John F. Kennedy’s Moonshot speech for a new
        generation, she invited world leaders,
          international organisations, civil society, and business
        leaders to stand with her generation and back
          the innovatio
        https://www.youtube.com/watch?v=zvLD6waVlkk ...


Umashankar was 8 when she first learned about climate change and says it 
has had a huge impact on how she thinks about innovation. She's 
exasperated by how the world shrugs off environmental issues as if they 
are someone else's problems.

"All of us should understand that environmental issues are real and 
can't be fixed at a later date," says Umashankar. "There is no stop 
button. There is no magic fix."...
- -
An encyclopedia that was gifted to her when she was 5 sparked 
Umashankar's passion for science. She wants to become a scientist and 
invent products to help protect the environment for future generations. 
She also aspires to invent a single flu vaccine that can protect against 
all cold viruses. If it works out, she says she's pretty confident 
she'll win a Nobel Prize.
https://www.npr.org/sections/goatsandsoda/2021/11/03/1050227033/a-15-year-old-girl-invented-a-solar-ironing-cart-thats-winning-global-respect




/[ See Congress's Build Back Better Bill all 2135 pages, and one 
spreadsheet ]/
//RULES COMMITTEE PRINT 117–18
*TEXT OF H.R. 5376, BUILD BACK BETTER ACT*
https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-117HR5376RH-RCP117-18.pdf
- -
[ spreadsheet of major expenditures]
https://docs.google.com/spreadsheets/d/1oAy7k0Zi1Ei9K-30-_bEjfj8FS84CPyUaFmMytZSj4c/edit#gid=0

/
/

/
/

/[ Political training and policy making - Australia ]/
*The Politics of Climate Change | Steve E. Koonin*
Oct 21, 2021
John Anderson
As world leaders, including PM Scott Morrison, prepare to attend the 
2021 United Nations Climate Change Conference in Glasgow, there is 
mounting pressure for governments to apply a net zero energy policy by 2050.

In this interview, John talks with Steve E. Koonin, a theoretical 
physicist and policymaker, about the future of energy and the politics 
of climate change. Steve reflects on how the politicisation of climate 
science has led to a lack of transparency regarding climate statistics.

 From 2009 to 2011, Steve served as the Under Secretary for Science, 
Department of Energy in the Obama Administration. Steve now works as 
director of the Center for Urban Science and Progress at New York 
University and as a professor in the Department of Civil and Urban 
Engineering at New York University’s Tandon School of Engineering.

Steve is also the author of two books. His recently published book, 
Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It 
Matters, was a Wall Street Journal Bestseller.00:00 Introduction

    3:35 Are humans to blame for climate change?
    11:52 The Problem with Climate Modelling
    21:29 The Costs & Benefits of Climate Policy
    27:47 The Future of Renewable Energy
    34:19 Adaptation and Climate Change
    42:49 Net Zero: Is it Possible?

Conversations feature John Anderson, former Deputy Prime Minister of 
Australia, interviewing the world's foremost thought leaders about 
today's pressing social, cultural and political issues.

John believes proper, robust dialogue is necessary if we are to maintain 
our social strength and cohesion. As he puts it; "You cannot get good 
public policy out of a bad public debate."
https://www.youtube.com/watch?v=V_g3DuNnDT8

- -

/[ politics for university students ] /
*Day 3 - Matthew Paterson: The centrality of politics to climate change 
and the problem of climate...*
Oct 5, 2021
Institut des sciences cognitives - UQAM

ISC 2021 Summer School – Cognitive Challenges of Climate Change
(https://sites.grenadine.uqam.ca/sites...)

Day 3
Talk by Matthew Paterson: The centrality of politics to climate change 
and the problem of climate politics
MC: Nadia Seraiocco, Lecturer and Ph.D candidate, Écoles des médias, UQAM

    *Abstract:*
    Integrating the social sciences into knowledge production about
    climate change is widely recognized as difficult, for various
    reasons. But political science presents a particular sort of problem
    for such integrated knowledge production. When produced for
    policy-oriented processes, where policy-makers may themselves get to
    revise and approve the text of a document (as is the case for IPCC
    reports), knowledge focused on explaining and evaluating the
    performance of political systems on climate change is a particularly
    difficult sell. Policy-makers are reluctant to accept analyses that
    explain why their country has worse performance than another. This
    presentation focuses on this twin character of political science
    knowledge on climate change: everyone knows politics is central to
    how effectively we respond to climate change, but everyone has
    institutional incentives to avoid talking about it. It also outlines
    the central elements of how we should understand the political
    dynamics of climate change.

https://www.youtube.com/watch?v=uwpVA2_gs_k


/[  stress and anxiety - a press release ] /
*The American Psychological Association and ecoAmerica are pleased to 
present Mental Health and Our Changing Climate, *a report publishing on 
November 4, 2021 that chronicles the impacts of climate change on 
Americans’ mental health and psychological well-being and provides 
guidance and resources to act and advocate. The report builds on the 
celebrated 2017 edition to include the latest research and expanded 
sections on populations disproportionately impacted, climate anxiety, 
and a spectrum of solutions. Join us on November 4 to hear the major 
findings of this report from the authors and to preview the action steps 
for communities, individuals, practitioners, and policymakers...
- -
The American Psychological Association and ecoAmerica are pleased to 
offer Mental Health and Our Changing Climate: Impacts, Inequities, 
Responses. This report is an update to the 2017 report, Mental Health 
and Our Changing Climate: Impacts, Implications, and Guidance. It shares 
the latest and best knowledge on the many ways that climate change 
impacts mental health individually and community-wide, how structural 
inequities cause certain populations to be impacted first and worst, and 
the spectrum of solutions available to build resilience, strengthen 
care, and inspire engagement for transformative progress. It is intended 
to further inform and empower health and medical professionals, 
community and elected leaders, and the public to understand and act on 
solutions to climate change that will support mental health and well-being.

It is past time to focus attention on the far reaching toll climate 
change is already taking on our mental health, as the economic, 
political, environmental and health implications of climate change 
affect all of us. It is time to face feelings of helplessness, fatalism, 
and resignation that may be keeping us and our nation from properly 
addressing the core causes of climate change and bringing forth solutions.

Now is the time to care for our mental health and our climate, and we can...
https://ecoamerica.org/mental-health-and-our-changing-climate-2021-edition/

- -

/[Read the full report ]/
*MENTAL HEALTH AND OUR CHANGING CLIMATE**
**IMPACTS, INEQUITIES, RESPONSES*
2021 Edition
EXECUTIVE SUMMARY 5
I. CONTEXT 9
  Our Changing Climate: A Primer         10
  How Climate Change Impacts Personal And Public Health         12
  Mental, Physical, and Community Well-Being: Links to Inequity     16
  Climate Change Concerns In The United States         18
  A Closer Look: The Fight For A Livable Future         19
  Psychological Barriers To A Proactive Response         20
  Climate Attitudes That Can Spur Action         22
  Climate Solutions Benefit Mental Health         24
II. THE MENTAL HEALTH IMPACTS OF CLIMATE CHANGE         26
  Introduction         27
  Impacts Of Severe Weather And Disaster Events         28
  A Closer Look: American Youth: Angry, Terrified, And In Despair       32
  Impacts of Longer-Term Climate Change         33
  Climate Anxiety         37
  A Closer Look: A Solution For Climate Anxiety: Spending More Time In 
Nature         39
III. HOW INEQUITY IS EXACERBATED BY CLIMATE CHANGE         40
  Populations Disproportionately Impacted By Climate Change 41
  A Closer Look: Natural Connections: Collaboration With The 
Environment         45
  A Closer Look: Lessons From COVID-19         48
IV. PROMOTING AND BUILDING RESILIENCE         49
  Resilience Defined 50
  A Closer Look: Arts, Parks, and Climate Resilient Communities     51
  Guidance To Support Individual Resilience         52
  Guidance For Strengthening Community Resilience         55
  A Closer Look: Community Hubs         61
V. ACCELERATING CLIMATE SOLUTIONS TO SUPPORT MENTAL HEALTH 62
  The Urgent Need For Climate Policy And Investment In The United 
States         63
  Climate Solutions To Protect Mental Health         64
  What Individuals Can Do         66
  What Mental Health Professionals Can Do         68
https://ecoamerica.org/wp-content/uploads/2021/11/mental-health-climate-change-2021-ea-apa.pdf


/[ alternative viewpoints   ]
/*Climate change isn’t the problem, so what is?*
By William Rees
Thanks to friend and retired blogger Gail Zawacki at Wit’s End for 
bringing this excellent new talk by professor William Rees to my attention.

Rees discusses our severe state of ecological overshoot and the 
behaviors that prevent us from taking any useful action to make the 
future less bad.

Rees thinks there are two key behaviors responsible for our predicament:

Base nature, which we share with all other species, to use all available 
resources. Most people call this the Maximum Power Principle.
Creative nurture. Our learned culture defines our reality and we live 
this constructed reality as if it were real. “When faced with 
information that does not agree with their [preformed] internal 
structures, they deny, discredit, reinterpret or forget that 
information” – Wexler.
I don’t disagree with Rees on the existence or role of these behaviors, 
but we also need Varki’s MORT theory to explain how denial of unpleasant 
realties evolved and is symbiotic with our uniquely powerful 
intelligence, and other unique human behaviors, such as our belief in 
gods and life after death...
- -
Some interesting points made by Rees:
- The 2017 human eco-footprint exceeds biocapacity by 73%.
- -Half the fossil fuels and many other resources ever used by humans 
have been consumed in just the past 30 years.
- Efficiency enables more consumption.
- The past 7 years are the warmest 7 years on record.
- Wild populations of birds, fish, mammals, and amphibians have declined 
60% since 1970. Populations of many insects are down about 50%.
- The biomass of humans and their livestock make up 95-99% of all 
vertebrate biomass on the planet.
- Human population planning has declined from being the dominant policy 
lever in 1969 to the least researched in 2018.
- The annual growth in wind and solar energy is about half the total 
annual growth in energy. In others words, “renewable” energy is not 
replacing fossil energy, it’s not even keeping up.
- The recent expansion of the human enterprise resembles the “plague 
phase” of a one-off boom/bust population cycle.
- 50 years, 34 climate conferences, a half dozen major international 
climate agreements, and various scientists’ warnings have not reduced 
atmospheric carbon concentrations.
- We are tracking to the Limit to Growth study’s standard model and 
should expect major systemic crashes in the next 40 to 50 years.
- This is the new “age of unreason”: science denial and magical thinking.
Climate change is a serious problem but a mere symptom of the greater 
disease.
P.S. Stay for the Q&A session, it’s very good.
https://un-denial.com/2021/02/06/by-william-rees-climate-change-isnt-the-problem-so-what-is/


/[ Yikes! Long article... is this possible or just conjecture? ]/
*A new Supreme Court case could gut the government’s power to fight 
climate change*
Neil Gorsuch’s dream case could be the Earth’s nightmare.
By Ian Millhiser  Nov 3, 2021

The Supreme Court announced late last week that it will hear four very 
similar cases — all likely to be consolidated under the name West 
Virginia v. Environmental Protection Agency — which could prove to be 
some of the most consequential court decisions in recent US history.

That’s a bold statement, so allow me to explain.

The cases are the latest chapter in the seemingly never-ending 
litigation over the Clean Power Plan, arguably former President Barack 
Obama’s boldest effort to fight climate change. Though the plan was 
never implemented, it still exists in a zombie-like state. A federal 
appeals court decision revived the plan last January, but the Biden 
administration said in February that it would not reinstate Obama’s policy.

Even though it’s no longer likely to be implemented, the petitioners in 
the West Virginia case — red states, energy companies, and owners of 
coal mines — are fighting to get the Court to rule that the federal 
Clean Air Act does not authorize Obama’s plan. More importantly, they 
call for new limits on the Clean Air Act that would severely restrict 
the Environmental Protection Agency’s ability to reduce greenhouse 
emissions in the future.

But that’s only the tip of the iceberg. At least some of the parties in 
the West Virginia litigation claim that it is unconstitutional for the 
EPA to take the sort of aggressive strides against climate change that 
the Obama administration took in its Clean Power Plan. This theory 
wouldn’t just strip the EPA of much of its power to fight climate 
change, it could potentially disable Congress’s ability to effectively 
protect the environment.

And even this description of the West Virginia litigation doesn’t fully 
capture the stakes. The most aggressive arguments against the Clean 
Power Plan wouldn’t just apply to environmental regulations — they could 
also fundamentally alter the structure of the US government, stripping 
away the government’s power on issues as diverse as workplace safety, 
environmental protection, access to birth control, overtime pay, and 
vaccination.

In this scenario, hundreds of laws could be weakened or even 
deactivated. Many of them would be gone for good, and reenacting any of 
these laws would require passing legislation through a bitterly divided 
Congress.

So West Virginia is a monster of a case — potentially the culmination of 
a conservative vision incubated at the Federalist Society for years, and 
long championed by conservative activists such as Justices Neil Gorsuch 
and Brett Kavanaugh. Indeed, a majority of the Court has already 
expressed sympathy toward Gorsuch’s plans to shrink the power of federal 
agencies, which is a strong sign that the West Virginia petitioners are 
likely to prevail on at least some of their claims.

In the worst-case scenario for the Biden administration, the West 
Virginia case could make President Joe Biden the weakest president of 
the United States in over 80 years, and it could give a Supreme Court 
dominated by Republican appointees a veto power over huge swaths of 
federal policy.

Buckle up. Because the United States will be a very different place if 
the Court’s right flank gets its way in West Virginia.

The West Virginia litigation seeks to permanently entrench Trumpian 
environmental policy
The heart of the West Virginia case is a conflict between Obama’s 
environmental policy and the policy advanced by his successor, former 
President Donald Trump. The red states, power companies, and mining 
interests behind this lawsuit all hope to entrench Trump’s policies — 
potentially forever.

The Clean Air Act requires certain power plans to use the “best system 
of emission reduction” that can be achieved using existing technology, 
while also taking into account factors such as cost. This scheme raises 
an obvious question: Who shall determine what, exactly, is the “best 
system of emission reduction” at any given moment?

Under the Clean Air Act, the answer to that question is the 
Environmental Protection Agency. It’s the EPA’s job to study changing 
technologies, determine when a new breakthrough should be adopted by 
power plants, and to order those plants to use that technology by 
issuing binding regulations. (Under certain circumstances, a power plant 
does not have to use the exact same technology preferred by the EPA. But 
power plants that use alternative methods typically will only be allowed 
to do so if they can achieve the same levels of emission reduction that 
would be achieved using the EPA’s methods.)

The Clean Power Plan didn’t simply call upon coal-firing power plants to 
install devices that would make them burn more efficiently. It also 
called for power plants to shift away from coal and toward cleaner 
methods of generating energy, including both natural gas and methods 
that produce no emissions at all, such as solar.

The West Virginia petitioners claim that EPA cannot require such a 
shift. And these parties have always been likely to prevail before a 
judiciary dominated by Republicans. In 2016, just days before Justice 
Antonin Scalia’s death briefly denied Republican appointees a majority 
on the Supreme Court, the justices voted 5-4 to halt the Clean Power Plan.

For a while, the Clean Power Plan’s opponents had powerful allies, in 
Trump and his EPA. In 2019, Trump’s EPA announced a new policy, 
euphemistically known as the “Affordable Clean Energy” (ACE) rule, which 
replaced the Clean Power Plan with much weaker rules.

The Trump-era rules urged coal plants to install technologies, such as 
upgraded soot-blowers and boiler feed pumps, which could marginally 
reduce emissions — and that’s pretty much it. As a federal appeals court 
explained in an opinion striking down these rules, “the EPA predicted 
that its ACE Rule would reduce carbon dioxide emissions by less than 1% 
from baseline emission projections by 2035.” And even that prediction 
was optimistic. Trump’s EPA acknowledged that its recommended 
technologies might wind up increasing emissions because they would 
reduce the cost of producing energy with coal.

This appeals court opinion is now being reviewed by the justices in West 
Virginia, and the various parties that brought this case urge the Court 
to state definitively that the Clean Power Plan is not allowed. Such a 
decision is likely to fundamentally alter the EPA’s powers in ways that 
could make it very difficult for the Biden administration — or any 
future administration — to abandon Trump’s policies.

*How federal agencies shape policy*
The Clean Air Act relied on a type of governance that is ubiquitous in 
federal law. Congress lays out a broad policy — in this case, that power 
plants must use the “best system of emission reduction” — and then 
delegates to the EPA the task of implementing that policy through a 
series of binding regulations.

Countless federal statutes rely on a similar structure. The Affordable 
Care Act, for example, requires health insurers to provide certain 
preventive treatments — such as birth control, many vaccinations, and 
cancer screenings — at no additional cost to patients, and it delegates 
the task of determining which treatments belong on this list to experts 
at the Department of Health and Human Services. The Department of Labor 
may raise the salary threshold governing which workers are eligible for 
overtime pay, in part to keep up with inflation.

There are several reasons why this sort of governance, where a 
democratically elected legislature sets a broad policy and then 
delegates implementation to a federal agency, is desirable. For one 
thing, Congress is a dysfunctional mess. If a new act of Congress were 
required every time environmental regulators wanted power plants to 
install new technology, it’s likely that those plants would still be 
using devices that were on the cutting edge in 1993.

Delegating power to agencies also ensures that decisions are made by 
people who know what they are doing. Imagine, for example, if Congress 
had to pass a law every time the Food and Drug Administration wants to 
make a new drug available to the public. Even if Congress had time to 
vote on such a decision, most members of Congress know very little about 
biology, chemistry, or medicine.

Delegation also insulates important decisions from political 
horse-trading. The decision about whether to approve a new drug should 
be made by scientists in the FDA, not by lawmakers who might be 
concerned that the drug’s manufacturer is in Arizona, and that they need 
to butter up Sen. Kyrsten Sinema (D-AZ) to secure her vote for the Build 
Back Better Act.

Nevertheless, a majority of the Supreme Court is very hostile to the 
idea that federal agencies should be allowed to set policy, and at least 
five justices have signaled that they want to revive a largely defunct 
constitutional doctrine known as “nondelegation.”

*Nondelegation, explained*
Nondelegation is the idea that the Constitution places strict limits on 
Congress’s ability to delegate power to federal agencies. Although the 
Supreme Court briefly wielded the nondelegation doctrine to strike down 
New Deal policies that gave a simply extraordinary amount of regulatory 
power to President Franklin Delano Roosevelt, this doctrine largely lay 
dormant for generations. Indeed, for many years, the Court’s decisions 
typically emphasized how reluctant judges should be to second-guess 
agency regulations.

During the Obama administration, however, the Court’s right flank 
started agitating for limits on agencies’ authority that haven’t been 
seen in generations. Under the strongest form of the nondelegation 
doctrine, the version advocated by Justice Clarence Thomas in a 2015 
opinion, agencies are simply forbidden from issuing binding regulations 
of any kind. Thomas believes that any governmental decision that 
“involves an exercise of policy discretion” also “requires an exercise 
of legislative power.”

So laws like the Clean Air Act are forbidden, if Thomas gets his way. If 
the United States wants to require coal plants to install a new device 
that will reduce emissions by 2 percent, Thomas would require Congress 
to enact a new law.

Most of the justices are unlikely to go that far, but a majority of the 
Court has rallied around the approach Justice Neil Gorsuch laid out in 
his dissenting opinion in Gundy v. United States (2019). A federal law 
authorizing an agency to regulate, Gorsuch wrote in Gundy, must be 
“‘sufficiently definite and precise to enable Congress, the courts, and 
the public to ascertain’ whether Congress’s guidance has been followed.”

This vague new standard is inconsistent with the framers’ understanding 
of the Constitution. Early American lawmakers — many of whom were the 
same people who drafted the Constitution — delegated tremendous power to 
executive branch officials.

Moreover, Gorsuch’s approach would effectively consolidate an enormous 
amount of power within the judiciary. When the Supreme Court hands down 
a vague and open-ended legal standard like the one Gorsuch articulated 
in his Gundy opinion, the Court is shifting power to itself. What does 
it mean for a statute to be “sufficiently definite and precise” that the 
public can “ascertain whether Congress’s guidance has been followed”?

The answer is that the courts — and, ultimately, the Supreme Court — 
will decide for themselves what this vague language means. The courts 
will gain a broad new power to strike down federal regulations, on the 
grounds that they exceed Congress’s power to delegate authority.

And Gorsuch would also apply this rule retroactively to statutes drafted 
long before the Court’s decision in Gundy — an approach with profound 
implications for the West Virginia case. The section of the Clean Air 
Act at issue in West Virginia was enacted in 1970.

Perhaps, if the Nixon-era Congress had known it needed to write that law 
with greater precision, it might have drafted it in a way that Gorsuch 
would deem acceptable (although it is unclear whether judges like 
Gorsuch would deem any meaningful environmental protection regime 
acceptable). But it’s simply unreasonable to expect lawmakers in 1970 to 
comply with a rule announced by a dissenting justice in 2019.

Gorsuch’s approach to nondelegation, in other words, wouldn’t simply 
strip Congress of much of its power to delegate authority to agencies. 
It would allow the most conservative panel of justices to sit on the 
Supreme Court since the early days of the Franklin Roosevelt 
administration to run roughshod through decades of federal statutes, 
invalidating or severely weakening hundreds of provisions drafted at a 
time when the nondelegation doctrine was widely viewed as a crankish 
notion that was correctly abandoned in the 1930s.

West Virginia contains the seeds of a constitutional revolution. It 
could, as Roosevelt warned in 1937, enable the Supreme Court to “make 
our democracy impotent.”

*A more moderate approach that still isn’t especially moderate*
In 2016, when Obama was still president and Kavanaugh was still a lower 
court judge, the DC Circuit Court heard another case involving the Clean 
Power Plan, which was also known as West Virginia v. EPA. At the time, 
Gorsuch was also still a lower court judge, and the nondelegation 
doctrine was still just a reactionary idea touted at Federalist Society 
conferences.

And yet, then-Judge Kavanaugh also suggested at oral arguments in this 
first West Virginia case that the Clean Power Plan must fall. He rested 
his arguments largely on something known as the major questions doctrine.

This doctrine derives from the Supreme Court’s decision in FDA v. Brown 
& Williamson Tobacco (2000). Although federal law gives the FDA broad 
authority to regulate drugs and devices used to deliver drugs, a 5-4 
Court concluded in Brown & Williamson that this power does not extend to 
tobacco.

Though courts should typically defer to an agency’s regulatory 
decisions, Brown & Williamson concluded that “in extraordinary cases ... 
there may be reason to hesitate before concluding that Congress has 
intended” to delegate authority to a federal agency. In asserting the 
power to regulate tobacco, the Court claimed, “the FDA has now asserted 
jurisdiction to regulate an industry constituting a significant portion 
of the American economy.” Congress, moreover, had previously “rejected 
proposals to give the FDA jurisdiction over tobacco.”

So, in light of that history, the Court determined that the federal law 
permitting the FDA to regulate drugs should not be read so broadly as to 
allow it to target nicotine.

Although Brown & Williamson placed a great deal of emphasis on the fact 
that Congress had rejected prior efforts to allow the FDA to regulate 
tobacco, the Court expanded the major questions doctrine in Utility Air 
Regulatory Group v. EPA (2014). Under Utility Air, any significant 
regulation pushed out by an agency is potentially suspect, regardless of 
whether Congress had given some outward sign that it disapproved of that 
regulation.

“We expect Congress to speak clearly if it wishes to assign to an agency 
decisions of vast ‘economic and political significance,’” Scalia wrote 
for the Court in Utility Air. The Court, in other words, imposed a new 
restriction on Congress. It could delegate broad powers to agencies, but 
any statute that did so had to be written with an unspecified amount of 
precision. And courts were free to invalidate regulations if they deemed 
the statute authorizing that regulation to be insufficiently precise.

The major questions doctrine is, in some ways, weaker than the 
nondelegation doctrine. For one thing, it doesn’t purport to be a 
constitutional doctrine. Because nondelegation claims that there are 
constitutional limits on Congress’s ability to delegate power, it is 
likely that justices loyal to this doctrine would declare some 
delegations invalid no matter how carefully Congress drafted a law. The 
major questions doctrine, by contrast, theoretically can be overcome by 
precise draftsmanship.

After Brown & Williamson was decided, for example, Congress enacted the 
Family Smoking Prevention and Tobacco Control Act of 2009, which 
explicitly gave the FDA the power that the Court denied it in 2000. At 
least so far, the Court has permitted the FDA to regulate tobacco under 
this statute.

But the major questions doctrine also suffers from many of the same 
problems as nondelegation. It is vague, so judges can easily read their 
policy preferences into decisions challenging agency regulations. And it 
changed the rules governing statutory drafting long after many important 
laws were enacted.

Again, if Congress had known, in 1970, that it had to draft the Clean 
Air Act in a certain way to prevent the Supreme Court from dismantling 
the EPA’s powers, it could have done so. It’s simply not reasonable to 
expect Congress to comply with a rule of statutory construction invented 
decades after Congress enacts a law.

Doctrines like nondelegation and major questions, in other words, 
threaten to retroactively undo decades of legislation. And, while these 
doctrines might hypothetically permit Congress to restore at least some 
old laws by enacting new versions that comply with the new rules, the 
filibuster all but ensures that no bill will become law.

Now, the Supreme Court appears likely to wield these doctrines to 
invalidate key provisions of the Clean Air Act. That means the federal 
government may soon have to fight climate change with both hands tied 
behind its back. And, if the Court does invigorate these doctrines, 
countless other laws could be next on the chopping block.
https://www.vox.com/2021/11/3/22758188/climate-change-epa-clean-power-plan-supreme-court



/[The news archive - this is the 56th Anniversary]/
*On this day in the history of global warming November  5, 1965*

November 5, 1965: President Johnson's Science Advisory Committee issues 
a report, "Restoring the Quality of Our Environment," that cites the 
hazards of carbon pollution.

https://www.theguardian.com/environment/climate-consensus-97-per-cent/2015/nov/05/scientists-warned-the-president-about-global-warming-50-years-ago-today 

- -
/[ Not many people have read this document - some brilliant minds wrote 
this original report -- 348 pages scanned ]/

*Restoring the quality of our environment. Report*
[ especially see #34 (p.16) ]
https://babel.hathitrust.org/cgi/pt?id=uc1.b4116127&view=1up&seq=13
/[ We used to have such a great government ]//
/


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