The Volokh Conspiracy - 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.

	[Jonathan Adler, April 9, 2008 at 10:30pm] Trackbacks 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.