Ed. note: This is a new weekly column by Elie Mystal, Managing Editor of Above the Law Redline. This space will focus on the laws that exist, should exist, and should be put out of their misery.
UNDER-REGULATED
Ancient Aliens: Here’s a dirty secret, I watch Ancient Aliens all the time. Yes, I know that there is street goo that is more intellectually honest than that show. But whatever, it’s like “Brain Games” for me: spot the ten thousand illogical leaps and historical mischaracterizations you heard in the last 30 seconds.
Any Ancient Aliens watcher (or, you know, generally knowledgeable person) is familiar with the Nazca Lines. They are symbols etched out in a windless landscape, done perhaps with the simple shuffling of feet, that can last for centuries, maybe millennia, in the high places of Peru.
And then Greenpeace comes along and just MESSES THEM ALL UP. How can you work for an organization that cares about the Earth and do so much disrespect to it? How does that happen?
And for what? Greenpeace was doing a publicity stunt on… climate change. Not some deep-cut environmental issue that is starved for public awareness, but climate change. Greenpeace thought it would be cool to superimpose “Time For A Change! The future is renewable. GREENPEACE” on the Nazca lines. Clever, guys. Now the Nazca lines may be scarred for all time.
The Peruvian government plans to file criminal charges against the Greenpeace activists. The only upside is that in 100 years, an “ancient astronaut theorist” will suppose that “Greenpeace” were a sect of non-human intelligence sent here to distract benevolent aliens from their ancient landing sites.
OVER-REGULATED
Mercury: The Supreme Court is going to review a case that could doom the Obama administration’s “mercury and air toxics standards” [MATS] program. The Utility Air Regulatory Group and National Mining Association are challenging the EPA rules because they were promulgated under Section 111(d) of the Clean Air Act. Here’s how industry lawyers put the problem:
“Three years ago, EPA promulgated a national emissions standard under Section 112 of the Clean Air Act for [power plants],” [Murray Energy Corp] wrote in a brief filed to the U.S. Court of Appeals for the District of Columbia Circuit this week.
“Under the express terms of the Clean Air Act, this action barred EPA from using Section 111(d) of the Act to mandate state-by-state standards for these same sources.”
It’s not that the EPA doesn’t have authority to regulate mercury and other toxins, it’s that they might not have authority to regulate them again when they’ve already promulgated rules under a different section of law.
It’s an interesting legal question. The EPA argues that these additional rules were “appropriate and necessary” under the rules of Section 111(d), which grants the agency additional authority. They used a different section because they were regulating a different thing.
I don’t know which side is right, but the lawyer in me would like to think that there is a “right” answer, and that the Supreme Court decision will eventually come down 9-0 so we can all have some clarity in the future. The worst thing would be for the decision to come down 5-4, with “pro-business” conservatives on one side and “environmental” liberals on the other. That’s not law, that’s just politics, Supreme Court style.
But if I had to guess, I’d guess at a 5-4 “punt.” A conservative majority will say that the EPA can do this, but only if they jump through some other hoops that they didn’t fulfill to the Court’s liking, so the rule-making has to start all over again and… oh my God, is it time for another election already? Great, let’s fight about emissions standards.
Meanwhile, I hear mercury is good to balance out our humors.
Pipeline Protests: A man who barricaded himself for 10 hours in an oil pipeline has been found guilty of trespassing and resisting police. Christopher Wahmhoff entered a pipeline under construction in Michigan as a protest. The prosecutor said that Wahmhoff had the right to picket, but not to enter the property and stop work.
Don’t pipeline contractors price in “crazy environmental protests” as part of normal “construction delays”? If not, they should.
Wahmhoff could face up to two years in jail for his actions, but his lawyer said he would push for probation and supervision instead of jail time. That seems fair to me. Dude spent 10 hours in an oil pipeline… a jail cell is goddamn liberating compared to that.
