News bits: A near miss with nihilism and lawless shell games; Polluters captured the EPA; etc.

The extreme fragility of the rule of law under the radical right: A recent Supreme Court decision in Cruz v. Arizona just barely avoided the rule of law degenerating into an option that states could choose to follow or ignore in many situations. Justice Kagan articulated the issue like this:

Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied … I mean, tails you win, heads I lose, whatever that expression is? I mean, how—how can you run a railroad that way?

Simmons is an earlier Supreme Court decision that protected a right of criminal defendants. The state of Arizona was ignoring the rule. The Supreme Court rearticulated the rule again in a case called Lynch. The same issue was before the court in the Cruz case.

Slate writes:

But it’s also important to recognize how close—one vote—the Supreme Court came to plunging us further into nihilism and lawless shell games.

Had the Supreme Court countenanced Arizona’s scheme, it would have enabled states to ignore Supreme Court cases that Arizona didn’t like. It would have permitted states to refuse to give effect to any Supreme Court precedent the states and Supreme Court justices didn’t like—and to deny people their rights in the process.

If that concern sounds familiar, it should. It’s basically what the Supreme Court allowed Texas to get away with on abortion in the S.B. 8 case before the court ultimately overruled Roe v. Wade last term. In 2021, the Texas legislature adopted S.B. 8, a novel abortion restriction that was designed to shut down abortion access without allowing abortion providers to challenge the law in court. In the case challenging S.B. 8, five justices (the five justices who would later overrule Roe) let Texas get away with that gambit while Roe was still standing. The five justices allowed Texas to effectively nullify a Supreme Court decision that Texas didn’t care for, and that six justices on the court didn’t care for either.  

Had the court allowed Arizona to do the same in Cruz v. Arizona—to nullify a decision that Arizona and probably a majority of justices on the court didn’t care for—it would have facilitated even more legal machinations that deprive people of their constitutional rights. Framed that way, it’s actually a little frightening that Arizona came within one vote of pushing us further toward a world of open season on any case that Republican-led states and Republican-appointed justices don’t like. (emphasis added)

What needs to be crystal clear here is it's not a time to rejoice when five of nine justices voted to protect a defendant’s constitutional rights. That is pro-democracy, a no-brainer and a vey good thing. Instead, it is time for fear because four of the nine voted to not protect a defendant’s constitutional rights. That is tyranny plain and simple. In the Texas case, five justices allowed Texas to get away with denying a constitutional right. 

One measly vote. That is precisely how close the radical right Supreme Court is to unleashing tyrannical Armageddon on both our civil liberties and the rule of law. For the radical right civil liberties and the rule of law are an unpleasant inconvenience at best. That is why I call all six of the justices radical right Republican politicians in black robes. This is more than just a “little frightening” as Slate put it. It is legitimately fully terrifying. Or, is that hyperbole?

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Fake EPA concern for pollution -- the EPA is a captured agency: 

Regulatory capture: In politics, regulatory capture (also agency capture and client politics) is a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a specific constituency, such as a particular geographic area, industry, profession, or ideological group. For public choice theorists, regulatory capture occurs because groups or individuals with high-stakes interests in the outcome of policy or regulatory decisions can be expected to focus their resources and energies to gain the policy outcomes they prefer, while members of the public, each with only a tiny individual stake in the outcome, will ignore it altogether.

The Guardian writes:

Almost half of products cleared so far under a new US federal ‘biofuels’ program are not, in fact, biofuels

The Environmental Protection Agency recently gave a Chevron refinery the green light to create fuel from discarded plastics as part of a climate-friendly initiative to boost alternatives to petroleum. But, according to agency records obtained by ProPublica and the Guardian, the production of one of the fuels could emit air pollution that is so toxic, one out of four people exposed to it over a lifetime could get cancer.

In response to questions from ProPublica and the Guardian, an EPA spokesperson wrote that the agency’s lifetime cancer risk calculation is “a very conservative estimate with ‘high uncertainty’”, meaning the government erred on the side of caution in calculating such a high risk.

Under federal law, the EPA can’t approve new chemicals with serious health or environmental risks unless it comes up with ways to minimize the dangers. And if the EPA is unsure, the law allows the agency to order lab testing that would clarify the potential health and environmental harms. In the case of these new plastic-based fuels, the agency didn’t do either of those things. In approving the jet fuel, the EPA didn’t require any lab tests, air monitoring or controls that would reduce the release of the cancer-causing pollutants or people’s exposure to them.  

In January 2022, the EPA announced the initiative to streamline the approval of petroleum alternatives in what a press release called “part of the Biden-Harris administration’s actions to confront the climate crisis.” While the program cleared new fuels made from plants, it also signed off on fuels made from plastics even though they themselves are petroleum-based and contribute to the release of planet-warming greenhouse gases.

This is what regulatory capture does. It serves the special interests, usually at the expense of the public interest.  Two other examples of regulatory capture by special interests are the 2010 Deepwater Horizon oil spill in the Gulf of Mexico and the 2008 Wall Street financial disaster. The recent train derailment in eastern Ohio arguably is another example of regulatory capture of the Transportation Department (Pete Buttigieg) by special interests in the transportation sector, specifically railroads. 

In my opinion, the EPA is another regulatory agency that has been significantly or mostly captured by the special interests it is supposed to regulate in the name of the public interest.

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Lobbying: The Hill writes about the train derailment in eastern Ohio on Feb. 3:

But lawmakers, federal officials and union leaders are already placing the blame on rail companies, pointing to the industry’s decades-long opposition to stricter safety regulations.

Transportation Secretary Pete Buttigieg this week called for a slew of new railroad rules, including more stringent braking requirements and larger fines for railroads that violate safety regulations.

He called on Norfolk Southern to support new rail safety rules instead of mobilizing against them.

Railroads are an influential force in Congress and state legislatures, using their lobbying power to kill several regulatory proposals aimed at boosting safety.

The four largest U.S. railroads and their trade association together spent over $480 million [~$24 million/year on average] on federal lobbying over the last two decades, according to data from nonpartisan research group OpenSecrets. Norfolk Southern actually spent the least of the top railroads, shelling out $69 million over that period [~$3.5 million/year]. (emphasis added)

Note that just a few days ago Buttigieg said he was powerless to do anything about the railroad companies. After a blast of criticism for uttering that lie, he has apparently discovered that he actually does have some power.