Rosen's Unnatural "States of Nature":

New Republic legal affairs editor tries his hand commenting on environmental law in "States of Nature: How George Bush's legal war against the environment backfired," and makes a complete hash of it. Rosen's thesis is that conservatives have waged a "long-standing campaign against environmental protections" in which they "have taken a kitchen sink approach," deploying various -- at times even contradictory -- legal arguments, irrespective of legal principle. Writes Rosen, "The only consistent objective was to thwart regulation, and the only question was which strategy would be most effective in achieving that goal." An unintended consequence of this strategy, Rosen hypothesizes, is that "conservative anti-environmentalists may find that they have laid the legal groundwork for their ultimate defeat."

From the outset, Rosen's essay suffers from careless and inaccurate characterizations of conservative positions. Where Rosen correctly notes that many conservatives embraced federalism-based challenges to environmental regulations -- what he calls a "states'-rights strategy -- his primary example is out of place.

During the Reagan and first Bush administrations, the states'-rights strategy initially prevailed. In a series of legal challenges, conservatives embraced a pre-New Deal vision of Congress's power to regulate the environment. They insisted that the Clean Air Act, which instructs the EPA to "protect the public health" by regulating ozone and particulate matter, was an unconstitutional delegation of regulatory authority. In a federal appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. embraced this radical argument. (He was the same judge who had called for the resurrection of the "Constitution in Exile"--a reference to judicial limitations on federal authority that had been dormant since the 1930s and that would have called the EPA itself into question.) But, in 2001, in a unanimous opinion written by Justice Antonin Scalia, the Supreme Court disagreed. (In a separate concurrence, only Clarence Thomas indicated that he would be amenable to similarly radical arguments in the future.)
Contrary to Rosen's suggestion the nondelegation doctrine is hardly a "states' rights strategy" or a "states'-rights argument," as it limits congressional delegations to administrative agencies, and does nothing to formally limit Congress' ability to displace state authority. Further, it is misleading to say that the D.C. Circuit decision he references (American Trucking Associations v. EPA) held the Clear Air Act itself to be unconstitutional. Rather, in a portion of the opinion written by Judge Stephen Williams (not Judge Douglas Ginsburg as Rosen claims -- presumably in order to insert a gratuitous reference to "Constitution in Exile"), the court held that the act, as interpreted by the EPA, would amount to an unconstitutional delegation, requiring the EPA to interpret the act so as to provide a meaningful "intelligible principle" that would limit the agency's discretion. This is an important distinction because the D.C. Circuit decision would have allowed the EPA to cure the problem on remand -- something a holding that the Act itself was unconstitutional would have precluded.

Rosen then makes clear that Justice Scalia should not be regarded as an environmental hero for authoring the decision overturning the D.C. Circuit, for "Scalia's rejection of the states'-rights argument didn't mean he was sympathetic to environmental regulations; it meant he was intellectually flexible about how to attack them." The problem with Rosen's characterization here was that the EPA rules upheld by Scalia's opinion (in Whitman v. American Trucking Associations) were arguably the single most expensive environmental regulation ever proposed by the EPA. If Scalia was intent on implementing an "flexible" anti-regulatory strategy, he would hardly have sought to uphold such a massive administrative decision, nor would he have embraced an interpretation of the Clean Air Act that decisively rejects any reliance on cost-benefit analysis in the setting of federal air quality standards. Yet that is precisely what Scalia's opinion did.

Rather than address the starkly pro-regulation implications of Scalia's opinion, Rosen proceeds to suggest the decision is part of a "two-front war" against "meddlesome regulations at the state and federal levels." By augmenting federal power as against the states, Rosen suggests, Scalia and other conservatives are limiting the ability of states to adopt environmental and other regulations. While this might be a reasonable critique of various arguments for expansive federal preemption of state law, it is bizarre to connect Scalia's American Trucking opinion to such a cause.

Rosen turns next to the Bush Administration where, he writes, conservatives have "committed the EPA to an anti-regulatory agenda, and then attacked any states that tried to pass broader environmental protections than the now-complaisant federal agency." Contrary to Rosen's suggestion, the EPA has continued to adopt new regulatory controls on business over the past eight years, though far less aggressively than many environmental activists would like. This is hardly the agenda of an "anti-regulatory" or "complaisant" agency.

The one area where the EPA has been "anti-regulatory" and "complaisant" is in the context of climate change. As Rosen correctly observes, "the Bush administration tried to do as little as possible on global warming" and denied California's request for a waiver of preemption under the Clean Air Act so it could adopt and enforce its own greenhouse gas controls on new motor vehicles. Rosen reports that "the EPA's own legal staff warned that the denial of the waiver was illegal." Yet as I've discussed before, there is a strong argument that the EPA staff is wrong, as a matter of law (see here and here). Then Rosen commits a real howler, writing in the very next sentence that the Supreme Court, in Massachusetts v. EPA "agreed" with the EPA staff's judgment. No. The Supreme Court did not "agree" with the EPA staff who said the denial of California's waiver was illegal. Mass v. EPA rejected the Bush EPA's conclusion that it lacked authority to regulate carbon dioxide is a pollutant under the Clean Air Act, but this has little bearing on whether California is entitled to a waiver. Indeed, the EPA did not deny California's waiver request until well after the Mass v. EPA decision.

Continuing on the Court's Mass v. EPA decision. Rosen writes:

Justice John Paul Stevens's opinion for the Court, joined by Justice Anthony Kennedy and the three liberals, was full of rhetoric about the importance of states' rights and federalism, noting that states like Massachusetts played a crucial role in challenging the federal government's failure to follow the clear mandates of the law. Scalia's dissent, joined by Thomas, Samuel Alito, and John Roberts, struck a much more nationalistic note, arguing that the Court owed deference to the "reasoned judgment" of the EPA. (A year after the decision, the foot-dragging EPA has still failed to make the finding the Court required, leading congressional Democrats to threaten a subpoena.
This is also a bit odd, as the language stressing the importance of states' rights in Justice Stevens opinion is in the portion of his opinion about standing. The Scalia dissent, on the other hand, focused on an entirely different question in the case -- whether the EPA had regulatory authority over carbon dioxide -- not standing. The response to Justice Stevens' invocation of the importance of states in environmental protection was written by Chief Justice Roberts. Rosen's characterization here is even more confused, as one of Justice Stevens' arguments was that greater solicitude of state standing was justified because states had given up their sovereign power to deal with interstate pollution problems to the federal government. According to Stevens, in return for this sacrifice of sovereign power, courts should be more permissive to state litigants who seek to prod the federal government to regulate in their stead.

Rosen then proceeds to suggest that many conservatives are simply embracing a pre-Goldwater, pro-business agenda -- a fair point -- and that this could backfire if (as seems likely) the next presidential administration is more sympathetic to environmental regulation. Yet his evidence that the legal arguments made by conservatives against environmental regulations will somehow facilitate regulatory expansion is decidedly lacking. Perhaps recognizing the weakness of his case here, Rosen quickly suggests that the conservative defeat will come at the hands of Congress, rather than the courts:

even if anti-environmentalists convince the Supreme Court to overturn the policies of President Obama, Clinton, or McCain, Congress would likely reverse the decision with bipartisan majorities. Almost three in four Americans say they would pay more taxes for local governments to reduce the gases that cause global warming, according to a recent Roper/Yale environmental survey.
Perhaps this is true, but it hardly substantiates Rosen's opening claims, and there are ample reasons to doubt Congressional eagerness to adopt expansive environmental measures. Democratic control of Congress has hardly led to the advancement of meaningful environmental legislation.

In conclusion, Rosen writes:

Because state legislators and Congress are in a pro-environmental mood, and because the Supreme Court is now committed to deferring to Congress, says Douglas Kendall of the Community Rights Council [sic], "the next administration has all the tools it needs to control the global-warming agenda, and to push Congress to implement a national solution." In their opportunistic moves to use the courts and the EPA to thwart politically popular environmental regulations, conservatives may have unwittingly checkmated themselves.
This last bit is simply silly There is nothing in "states'-rights" legal arguments that would obstruct Congress' ability to adopt meaningful climate change policies. Even the most aggressive federalism arguments against environmental regulations acknowledged that the regulation of air pollution is well within even a relatively limited view of federal power. Contrary to Rosen (and Kendall), there is little in the legal arguments that conservatives have actually advanced that will have such a boomerang effect, let alone "checkmate" conservative policies.

There are many reasons to criticize the Bush Administration's haphazard and largely unprincipled approach to environmental policy. It's also fair to observe how the Bush EPA and Congressional Republicans have missed opportunities to articulate and advance a principled conservative environmental agenda. The problem with Rosen's essay, however, is that he misstates or misrepresents the relevant legal issues and arguments in the process of making his case. Only through gross oversimplifications and exaggerations does he make his ultimate thesis seem even plausible. This would be excusable from a newspaper editorial writer or generic political commentator, but from the legal affairs editor of the New Republic this level of legal analysis it is quite disappointing.

davidbernstein (mail):
I know this isn't the main topic of this post, but Judge Ginsburg never "called for the resurrection of the Constitution in exile." Here is precisely what Ginsburg wrote in his passing reference to this phrase:
So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.
Perhaps one can presume that Judge Ginsburg has some sympathy with at least some of these doctrines, but that's a far cry from asserting that he "called for the resurrection" of all or even any of them, which is simply inaccurate. Indeed, I don't even read the relevant review as "calling for the resurrection of the non-delegation doctrine," the general subject matter at hand.
4.9.2008 11:55pm
devil's advocate (mail):
Jon and I spent a day two weeks back (he prsenting and me listening) with David Schoenbrod who is arguably one of the greatest modern thinkers on the non-delegation doctrine. He used to be a lawyer for the Natural Resources Defense Counsel and you would think that such credentials would make his Power without Responsibility the goto reference for people who want to bloviate on this area of law in a modestly informed way.

If you don't understand what is at stake in non-delegation, you pretty much don't understand the separation of powers as other than a nursery rhyme. Ironically, the decision that, in this commentors opinion, all but destroyed the dormant non-delegation doctrine was lost by Schoenbrod's comrades in Chevron v. NRDC (Ironically written by Justice Stevens but adored by Justice Scalia who wasn't on the court until 2 years later. Stevens flipped to write Mass v. EPA and Scalia stuck to his guns. The New republic should really have been opining about how environmentalists know no legal principles and only care about winning as to allege that of conservatives -- it's not that the argument can't be made but the thread of principle has generally been clearer from the business side albeit Chevron was a business won case not argued on non-delegation but on statutory interpretion you could still say the business community switched sides in the intervening 15 years because they didn't know the Pandora's box they had unleashed in Chevron).

After a fairly thorough and refreshing debate on the merits of the substance of the Yoo memo's on Jon's earlier thread, where a great deal of animus towards the Bush administration and Yoo's philosophy in particular is aimed at the expansion of executive power through the exercise of great latitude of action, it is bittersweat at best to see the left drop their claims of a regal executive and bash business for having the temerity to argue that if Congress intended to regulate the economy within an inch of its life they would have said so articulately (that was not the exact argument, and portraying the exact substantive stake in the arguments is subtle as there were actually two cases between the same plaintiffs not exactly consolidated, but as one of these was the only supreme court case in which I ever filed a brief I'm taking a little poetic license here, glad to debate it in finer grained terms). Essentially the Yoo argument in the torture memo. Despite all the refusal to stoop to actual argument on the issue, Yoo's argument amounted to a proposition that had Congress meant to intrude on the commander in chief to such an extent as deciding the limits of aggressive interregation for irregulars it would have said so specifically. (not meaning to restart all those arguments here and acknowledging that having gotten that far Yoo found that current authority prohibited the infliction of "severe physical pain" and the real argument between he and his detractors is whether waterboarding inflicts "severe physical pain" in accordance with the statutory intrepretation of that term)

Really the point that a left leaning commentor could have made is that the left must be prepared to use any strategy to protect the environment. In Chevron you essentially ignore the importance of flexibility at EPA and argue they don't have it. In American Trucking you argue they do. Then in Mass V. EPA you argue they don't. After all the left aren't the ones claiming they have a consistent view of the constitution and the separation of powers.

What Rosen really demonstrates is that he doesn't understand the federal separation of powers much, nor does he grasp the reason for his confusion between that theory and states rights, is that federalism as applied to the state federal separation is not a one-way street that says the states are always closest to the problem and always the best laboratory of democracy for government action and/or the true holders of the police power. Rather federalism is the flip side of the separation of powers coin (maybe the new $5 coin -- i wish). It is meant to pit the federal and state governments against one another (interesting question as to whether states suing for federal law as in Mass v. EPA amounts subverting that check or accomplishing it in novel way)as a protection for liberty -- presumably one level of government or the other would be tempted to the role of defender of the people depending on how the interests are arrayed in a certain conflict. Thus one could see federal enforcement of civil rights in the south (14th amendment incorportion arguments other technicalities aside) not as a violation of federalism but as federalism in its purist form. Bulletin to Rosen, see Madison in Federalist 51 (he probably wouldn't want to read that kind of subversive literature):

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
4.10.2008 9:04am
Stuart Buck (mail) (www):
Great post, Jonathan.

I can't believe Rosen would write something so incoherent as this: "Scalia's rejection of the states'-rights argument didn't mean he was sympathetic to environmental regulations; it meant he was intellectually flexible about how to attack them.

This simply makes no sense in reference to an opinion both upholding the EPA's regulations and taking away TWO means of "attack" (analysis of cost and the non-delegation doctrine).
4.10.2008 10:51am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 04/10/2008 A short recon of what's out there that might draw your attention, updated throughout the check back often.
4.10.2008 11:49am
Humble Law Student (mail):
Jeff Rosen's recent article on big business and the Supreme Court was exceedingly weak as well. I used to like Rosen's writing. Is he becoming a mere partisan/ideological hack now?
4.10.2008 12:31pm
TokyoTom (mail):
"There are many reasons to criticize the Bush Administration's haphazard and largely unprincipled approach to environmental policy. It's also fair to observe how the Bush EPA and Congressional Republicans have missed opportunities to articulate and advance a principled conservative environmental agenda."

So when are we going to see you put together your own argument for our benefit, Jon, instead of wasting your time showing us how poorly some understand?
4.10.2008 12:31pm
So when are we going to see you put together your own argument for our benefit, Jon, instead of wasting your time showing us how poorly some understand?

How is debunking an argument made in a national publication a waste of time?
4.10.2008 2:21pm
Jonathan H. Adler (mail) (www):
TokyoTom --

I've written quit a few articles over the years criticizing Republican environmental efforts and articulating alternatives. Here is one from last year.

I don't write such pieces as much any more because I got tired of repeating myself.

4.10.2008 2:32pm
MarkJ (mail):
Jeffrey Rosen: Living proof that anybody can get through law school.
4.10.2008 5:14pm
Kevin O'Brien (mail) (www):
Hey, this is The New Republic. Former home of Stephen Glass and Scott Beauchamp, and still the home of Eve Fairbanks and Franklin Foer. It shouldn't shock you that Rosen's article gets a lot of things wrong, it should amaze you that it gets anything right.
4.10.2008 5:54pm
M. Simon (mail) (www):
The gases that cause global warming.

And suppose it is not the gases that cause global warming. Suppose it is the sun. After all solar scientists say we are headed for a Dalton Minimum. A Little Ice age.

And the next sunspot cycle is late. NASA Predicts some time in 2009. If the next cycle doesn't start in 2010 be worried. If we don't see any spots by 2012 be very worried. 2015? By warmer clothes and stock up on food. World wide starvation will be at hand.

What is the best thing we can do in such a situation? Pump more CO2 into the atmosphere so plants can grow faster in a shortened growing season. Will it have much effect? No. 98% of the emitted CO2 will be absorbed by the ocean.

In fact a cooling ocean has already caused CO2 to fall off the trend line.

CO2 Falls Off Trend Line. Now that is by no means definitive at this point. We will need another year or two to be certain of what is happening but, it is an early indication.

So let me ask the heretics question. The EPA can regulate gases that cause global warming. But can it regulate gases it believes causes global warming. Given that despite Al Gore, the science is not settled. What level of proof is required? Who can present the proof? Who can present counter arguments. Who decides? What are the rules of evidence?
4.11.2008 5:50am
ruralcounsel (mail) (www):
So if global warming turns out not to be, and we are on the brink of a cooling cycle ...

does the EPA have the authority to regulate in terms of mandating MORE carbon dioxide into the atmosphere? Even if they have declared CO2 a "pollutant"?

"Have you burned your quota of organics this week?"
4.11.2008 11:10am
TokyoTom (mail):
Jon, I remember your Sanford piece; it`s nice in terms of suggesting that conservatives need a positive conservation agenda and articulating some suggestions, but contains nothing along the lines of a serious review of the failed promise (other than to long-time corporate insiders) of this Administration.

While it seems to me that you`ve made ad hoc criticisms I`m not aware that you`ve made an effort to pull them together. Did I miss something?

4.12.2008 2:03am