[andrewmg]

Ah, forgotten records, including the musings of poet Allen Ginsburg, provide a secret decoder ring to interpreting the Clean Air Act. This is not, of course, how one interprets statutes.

For what it's worth, the linked press release's description of the Supreme Court's decision is wrong; the court did not, in fact, hold that "Congress had not empowered the EPA to regulate greenhouse gases," but that it could not regulate in the manner that it did. And, so far as the statute at issue is concerned, the evidence is overwhelming that it was never intended to empower EPA to restructure the nation's electricity system. I wrote a fair bit about this at the time, and was apparently persuasive.[1]

[1] https://www.supremecourt.gov/DocketPDF/20/20-1530/204857/202...

[prpl]

Honest question:

How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?

Recent court opinions seem to take the stance that congress hasn’t legislated thoroughly and accurately, and now have crippled the chevron doctrine saying it should be in their hands.

There’s parallels here with software development, I think. It’s easy to come up with a basic system that works as intended but is not robust to failure. It’s extremely hard to near impossible to be both succinct, correct, and robust to failure. You also wouldn’t expect the PMs to be responsible for the implementation.

Of course, many lawmakers are happy to outsource the coding to special interests.

[nradov]

One option would be to just have fewer federal laws altogether, and devolve most authority back to the several states. The federal government was only able to assume many of it's current powers due to a series of Supreme Court decisions that allowed Congress to use the Commerce Clause to legislate on issues only loosely connected to interstate commerce. Those precedents can be overturned.

Decentralized, peer-to-peer systems tend to be pretty robust. Even if a few states "fail" the others will be fine.

[delichon]

> How do you square a legislative failure to be specific with Gorsuch lambasting the length of most modern laws?

Specificity plus brevity plus non-delegation add up to a limit on the load of law that we are subjected to. It's the bias toward freedom of individual action of classical liberalism. You are entirely correct that this kind of limitation would be crippling to a software project. Gorsuch just doesn't think that the state should have that degree of detailed control.

[akira2501]

> extremely hard to near impossible to be both succinct, correct, and robust to failure.

It depends on the size of the overall system. The smaller the system the easier this is to achieve.

> many lawmakers are happy to outsource the coding to special interests.

In and of itself, this is actually a good thing, as you point out:

> You also wouldn’t expect the PMs to be responsible for the implementation.

So what you really want is two third parties. One to write. The other to review. Which, we have, in that the President is entitled to veto any legislation that hasn't passed with a super majority.

[jxdxbx]

The Major Questions Doctrine is just a way for the Court to reject a reading of a statute even it agrees is supported by the plain text. It a statute gives an agency broad authority, the agency should have broad authority, and if Congress doesn't like it, it can claw it back. All the Supreme Court did in the EPA cases was insert its own policy preferences for that of the elected branches by inventing a notion that a statute needs to be super-duper extra clear if agencies want to do something businesses don't like. Bravo for helping convince the Court to adopt this intellectually bankrupt framework.

[AdamJacobMuller]

Comments like this, where someone who is directly involved and deeply knowledgable, randomly jumps in are why I love HN.

People are so fixated on a result (in this case lowering CO2 emissions) that they can't see past that to consider the actual fundamental legal principles of court decisions, especially supreme court ones. I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends. Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).

I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions. It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision, they commonly seem to not even report on the actual legal question being decided! I have never seen a single mainstream news article which correctly casts blame on congress for failing to legislate effectively or unambiguously.

[mullingitover]

> Moreover it seems like people don't consider the negative effects if courts decided cases in the other direction (e.g. how federal agencies could abuse their authority if Chevron had been upheld).

We don't need to hypothesize, Chevron was the law of the land for most of our lifetimes until the self-appointed Supreme Court super-legislature intervened. Arguably Chevron itself was the courts recognizing established legislative function with federal agencies that had existed for decades prior. We can see exactly how federal agencies would or would not abuse their authority, and congress really didn't have a problem with the situation as evidenced by the the absence of legislation to change the arrangement.

The legislative failure is really that congress hasn't immediately drafted new legislation to reverse this brazen power grab, discipline the rogue justices, and reform the Supreme Court back into its place as an apolitical branch.

[giantg2]

"It's bizarre to me how the media only reports on how they disagree with the result (which is a legitimate opinion) and completely fail to discuss, debate or report on the legal theory behind the decision"

In a lot of cases, they do more than that and outright misrepresent it.

[refurb]

> they can't see past that to consider the actual fundamental legal principles of court decisions

Precisely.

The court isn't ruling about CO2 emissions, it's ruling how the government operates within the confines of our constitutional system.

If Congress fails to pass a law that correctly empowers an administrative body to regulate X, then that regulatory body should be prevented from regulating X.

The issue then gets kicked back to Congress, where their job is to refine the law to address its deficiencies.

The idea that Congress can pass overly broad laws that administrative bodies can then independently interpret that are outside the ability to challenge in a court of law seems like a terrible system.

[ant6n]

> I see this as a failure of our legislative branch, they are incapable of legislating effectively and people look to the courts to achieve their desired ends.

Uh, the US has a deeply dysfunctional system. It covers most aspects of governance, judiciary, legislative, electoral system, the fifth estate.

It’s entirely reasonable people are only concerned with outcomes, and not process.

[Varriount]

Which decisions have you read?

[yowzadave]

> I try to read the actual decisions, especially for Supreme Court ones, especially when I superficially disagree with the result and I very rarely end up disagreeing with the decisions.

Are you equally persuaded by the dissenting opinions? It seems likely that you’ve been fooled by a bunch of lawyers, who are smart and highly trained at making plausible-sounding arguments for whatever their clients require.

Constitutional law is political. The Supreme Court is recruited and appointed for their political loyalties, and to a large extent their decisions conform to their political alignment. To treat their arguments seriously about which side is correctly interpreting a very old, very ambiguous document can be an interesting academic exercise, but it misses the point about what they are actually doing.

[spacebacon]

Thank you for your public service and agency to bring this to the people of HN. Is there anything you would like to say now that was not said then?

[doctorpangloss]

I don’t think this is the “bitter medicine” or “hard truths” you think it is.

Separately, while it’s very interesting that you played a role in writing this, and I believe that you’re correct in general about the errors in the linked articles: despite the fact that you are highly experienced, there are still idiots who win court cases, even Supreme Court cases, on crap arguments, sometimes. However, idiots never become surgeons. In my personal experience, I don’t know any idiots who also write sophisticated software. So this idea that there is some kind of objective, apolitical correct interpretation of a statue - that the practice of law at the highest levels in trials in front of the Supreme Court has this major objective element to it as surgery and math does - is kind of bupkis, you are as much practicing something imaginary, subjective, political, and poetical as the musings of Alan Ginsburg as the professors do.

So what is your opinion: do you really think Supreme Court decisions are apolitical? How would you tell the difference between a politically motivated decision that uses your arguments as a “parallel construction” to support that political decision, and a sincere belief that your way of reading the statue is objective and apolitical? Because that is what people are pissed off about.

[defrost]

> However, idiots never become surgeons.

That would once have been taken as gospel, then came Ben Carson standing by his statement that Egyptian pyramids were built for grain storage.

In the medical world there are strong opinions as to whether the procedural dexterity inherent in excelling as a surgeon also requires better than average reasoning prowess.

[MisterBastahrd]

I think it's fairly obvious that the court system is more metaphysics than physics. Even when the laws are clear, we still have politically motivated jurists who will put their own denominational spin on the application of said laws.

[tpmoney]

>However, idiots never become surgeons.

Really? One need only look at lists of physicians whose medical licenses have been revoked or who have been sued for malpractice or abusing their patients to disabuse themselves of the notion that "idiots never become surgeons". Heck the history of medicine itself is instructive on that front. Education and success in a specific field does not preclude you from being an idiot in others or indeed even within your own field.

[7e]

You give yourself far too much credit. You provided a fig leaf to cover an ideological power grab by the court, as evidenced by the naked 6-3 partisan vote split. The court was going to dismantle the EPA anyway, and you just gave them some flimsy reasoning with which to do it. They would have run with far less than this, as evidenced by the run of extremely questionable court decisions which have occurred since conservatives gained the super majority.

[fuzzer371]

Honestly, who cares at this point? Obviously the intent of the clean air act was to reduce air pollution which obviously includes regulating greenhouse gas emissions. I'm tired of playing the "Well technically..." game while the planet is actively dying.

[shawndrost]

Thank you for providing your expertise in this comment section. A few followup questions, if you will...

1. Posit for a second that 1970s lawmakers did intend to delegate sweeping powers to the EPA under the CAA and allow it to regulate CO2 in ways that reshaped the every sector of the economy, when the time comes. MQD says the CAA as-written didn't accomplish that, regardless of what legislators wanted, because the EPA can't decide major questions except where legislators clearly scope and delegate that authority. True?

2. Posit that a supermajority of lawmakers, today, wanted to rewrite the CAA to actually delegate those sweeping powers of CO2 regulation to the EPA. This would be impossible, because it's not possible to enumerate all the major questions, and clearly scope and delegate the necessary authority, in order to free the EPA's hand across future decades of rulemaking impacting every major industry. True?

3. My sense is that the 2012 EPA rules mostly killed new coal plants and doomed existing facilities, practically accomplishing the same kind of "generation shifting" described in your brief. This seems like the kind of "major question" that you argue cannot be decided by EPA rulemaking. Though any number of legal and practical facts may shield those 2012 rules from post-hoc scrutiny, similar rulemakings today would probably not pass muster. True?

4. What (if any) defensible actions do you think the EPA could take, today, to reduce CO2 emissions under authorities granted by 111(d) of the Clean Air Act?

Again, thanks for your 2c.

[andrewmg]

I don't think your second point is correct. Congress could most certainly empower EPA to administer a cap-and-trade scheme or even some kind of phase-out, as it did with (respectively) acid-rain precursors and CFCs. Congress could do the same for GHG emissions, without spelling out the impact on each and every affected industry or source. Congress might, for example, set an economy-wide emissions cap, set a schedule of annual caps or a formula, specify how EPA should go about determining the cap each year, or some combination of those things. If Congress specifies that all sources economy-wide (or some subset of them) will be subject to a cap, then it has answered the major question.

On your third point, see the paragraph on page 38 of my brief linked above. "Generation-shifting," as used in the CPP, was EPA's claim that it could set "achievable" emissions standards based on turning off a source. One can argue about whether new-source standards satisfy the statutory test (BACT) applicable to major industrial facilities and whether the agency's decision to set those standards at a particular level is supported by the evidence or otherwise arbitrary and capricious. But that's an entirely different inquiry from whether Congress empowered EPA to switch off more or less every source of emissions in the country as it so chooses.