Eugene Volokh's Blog, page 35

[Eugene Volokh] Washington Court of Appeals Concurrence's >2500-Word Sharp Criticism of President Trump

From the concurrence in Judge George Fearing's concurrence in today's Wilkinson v. Wash. Med. Comm'n. Judge Fearing wrote the majority opinion, which upheld discipline imposed on a doctor for his COVID-related treatment, but rejected such discipline for the doctor's public speech "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic." On balance, Judge Fearing's majority is quite a First-Amendment-protective opinion, and his separate concurrence also argued that the doctor's speech should be especially protected as political speech, and not just speech about medicine.

Then, several pages into his concurring opinion, Judge Fearing turned from the issues in the case to the First Amendment more broadly, and then to the political situation in the U.S. more broadly. A short excerpt from his long criticism (which offers specific details as well as general condemnation):

Not for more than two hundred years has any President sought to destroy the First Amendment as our current national leader has…. This President operates under an authoritarian and retributive agenda that trashes the First Amendment rights of those who criticize him or who support causes with which he disagrees. This President loathes the nonpartisan nature of the First  Amendment…. Our current President refuses to answer legitimate questions posed by reporters and attacks inquiring journalists as unfair and stupid….

Our current President criticizes federal judges who rule against him…. Unknown individuals have sent pizzas to federal judges' home addresses to menace them. One pizza arrived at the home of United States District Court Judge Esther Salas under the name of Daniel Anderl, the judge's son who was killed by a disgruntled gunman targeting Salas. Judges increasingly receive threats for rulings issued unfavorable to the presidential administration. Attacks on the judiciary impede the checks and balances intended by the framers of the United States Constitution. The sidelining of the judiciary permits rule by political power and brute force rather than by law. Other judges warn, both inside and outside the context of written rulings, of a clear and present danger to the judiciary and the rule of law by the current administration….

In the face of violence against his adherents, the present president, instead of elevating tolerance and preaching liberty of thought and freedom of speech, weaponizes the deaths and injuries for political gain. He immediately demonizes an unidentified "them," meant to refer to anyone who opposes his agenda. He does not then concede the existence of good people who hold liberal political views….

I encourage Dr. Wilkinson and all Washingtonians to recognize, as this concurring opinion has, the nonpartisan nature of the First Amendment and to condemn the violations of the First Amendment by any President who bestows free speech protections only on his votaries….

I share much of Judge Fearing's disapproval of the President's particular actions related to free speech (see, e.g., my views as to the administration's actions with regard to Harvard, law firms, and more). But such a thoroughgoing condemnation of an elected official's overall behavior and attitudes, in a case that doesn't even directly deal with the official's actions, struck me as quite unusual (even in an opinion issued by an elected judge, as Washington judges in part are), and in my tentative view not really fitting for a judicial opinion. In any case, it was noteworthy, so I'm noting it; I'd love to hear others' views on the subject.

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[Eugene Volokh] Doctor Can't Be Disciplined by Washington Medical Commission for Blog Posts About COVID

[The posts were "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic."]

A short excerpt from the very long Wilkinson v. Wash. Med. Comm'n, decided today by Washington Court of Appeals Judge George Fearing, joined by Chief Judge Robert Lawrence-Berrey and Judge Tracy Staab; it strikes me as generally correct:

Dr. Richard Wilkinson challenges discipline imposed on him by the Washington Medical Commission … related to his treatment of seven patients with COVID-19 and related to his clinic website's blogs downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic…. We affirm the patient care discipline and reverse the blog sanctions. WMC's discipline of Dr. Wilkinson for his website blogs breached his First Amendment free speech rights….

The First Amendment confirms that the government lacks power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, we presume content-based restrictions on speech invalid….. Critical to this appeal is the extension of First Amendment protection to false statements. U.S. v. Alvarez (2012). This protection is essential because some false statements are inevitable with an open and vigorous expression of views in public and private conversation, expressions the First Amendment seeks to guarantee. New York Times Co. v. Sullivan (1964)….

WMC suggests that speech by doctors must be consensus driven. It cites no authority for this position. The law, to the contrary, defeats this position. The First Amendment robustly protects a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream or even dangerous.

WMC's contention that it may monitor the scientific accuracy of physician's speech means that the State of Washington holds power to monitor speech and assess the trustworthiness of that speech. A government's power to protect truthful discourse would cast a chill on the exercise of free speech and thought. Alvarez.

According to Dr. Richard Wilkinson, WMC's finding that his statements were false supports Wilkinson's position. It shows punishment based on viewpoint discrimination. We agree. The First Amendment reserves to the people the right to assess truth. The state has no right to protect the public against false doctrine.

We deem the rule that fallacious statements receive First Amendment protection to control this appeal. Since WMC grounds its discipline of Dr. Richard Wilkinson on a claim of falsity, this sole rule could dispense of the appeal. But we also conclude that the First Amendment rule prohibiting content-based governmental action controls this appeal….

WMC next contends that, even if the state cannot preclude a member of the general public from spreading false information about COVID-19, it may punish such dissemination in the context of professional licensing. The state may control speech within the context of professional licensing if such regulation is incidental to actions it may regulate, such as treatment of an individual patient. For example, the state may enforce informed consent laws, which require disclosures by the physician, since the law relates to provision of a specific medical treatment….

We agree with WMC that a state law that regulates the practice of medicine and only incidentally burdens speech is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate state interest…. The principles asserted by WMC fail, however, in the context of Dr. Richard Wilkinson's website blog. If discussions between a doctor and patient do not directly implicate care of that patient, the First Amendment shields the speech….

Dr. Richard Wilkinson offered no medical treatment through his public blog statements. WMC could constitutionally discipline Dr. Wilkinson for his prescribing ivermectin to COVID patients, for his failure to disclose relevant information to patients about ivermectin, and for his violation of the standard of care when directly advising a patient to shun COVID-19 vaccines. WMC could not regulate Dr. Wilkinson's speech on his website blog when he preached the same themes….

Supreme Court precedent suggests that, even assuming the state establishes a strict link between its compelling interest and measure to further that interest, the government still carries the burden of demonstrating that counterspeech would not suffice to achieve its interest. For example, WMC could have engaged in a public information campaign promoting the vaccine and condemning the use of ivermectin. WMC presented no evidence of whether it had engaged in opposite speech and the impact of this speech.

Finally, WMC asks us to fashion a new narrow exception for a physician's knowing misrepresentations of verifiable medical facts. The Commission primarily substantiates this request based on dicta in Alvarez that the Supreme Court may not protect some forms of speech historically lacking constitutional protection. The Court further declined to delineate an exhaustive list of modes of speech circumventing First Amendment shelter and left open the possibility of new exceptions beyond the stated exemptions of obscenity, fighting words, conspiracy to commit a crime, slander, and true threats….

We doubt this clodhopper court holds the status to create exceptions to the First Amendment. We decline to do so. WMC provides no authority supporting its postulation of a long tradition of regulating false speech by physicians outside of the physician-patient relationship. To the contrary, we have analyzed decisions that express concern about regulating physician speech, even if the speech advocates for treatments not generally accepted by the medical community….

Judge Fearing also added a separate concurrence, arguing that the WMC's actions also improperly punished Wilkinson's political speech:

I write this concurring opinion in part because, in today's incendiary political environment, I would prefer to promote the importance of protecting political speech, including protests, and rest our decision on the First Amendment's neutral treatment of political speech….

I recognize that a speaker's opinion can be both political and scientific in nature. Nevertheless, assuming Dr. Richard Wilkinson's blogs dipped in part into the cabin of science, its other nature, the political nature of his COVID statements, bolsters his position that WMC could not discipline him for the publication of his opinions….

Judge Fearing also had a >2500-word condemnation of President Trump, in my experience quite unusual for a judicial opinion; but I saved that for a separate post, focusing here just on the First Amendment doctrinal questions.

Thanks to Mark Leen for the pointer.

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[David Bernstein] What Does the Rabbi Who Conducted Your Wedding Say About Your Religious and Political Views?

[Very little. ]

I agree with everything Josh says about the inappropriateness of anyone attacking judicial nominee Rebecca Taibleson on the basis of religion, and specifically because the Reform rabbi who married Rebecca and her husband supports LGBT causes.

And while this is sort of religious attack is very inappropriate in general, I also want to point out that it's not just inappropriate but absurd in this particular context.

First, Reform Judaism openly supports allowing Jews to define Judaism in their own terms. So there is zero reason to think that because a Reform rabbi marries you, you agree with either that Rabbi or the official Reform position on any given issue, much less every issue.

For that matter, the fact that you got married by someone is a particularly poor indication of your political and religious values.

Why do people choose a particular rabbi to marry them?

"We just moved to the area, and this is the only rabbi we know."

"We have friends who referred us to this rabbi as doing beautiful ceremonies."

"It's the rabbi from my childhood who saw me grow up, and it would be particularly meaningful to have this rabbi do my marriage."

"The bride's parents live in X, where we are holding the wedding, and Rabbi Y is the only rabbi in town."

"The groom's family belongs to Temple Beth X, and as part of their membership dues the rabbi conducts weddings of congregants for free."

"This is the only rabbi in town willing to do intermarriages."

And so on. You know what I've never, ever heard any Jewish couple say?: "We chose this rabbi because we checked the rabbi's theological and political views, and they align 100% with ours."

Conflict of Interest Watch: Rebecca Taibleson's father is Michael Krauss, a retired law professor who was my colleague at Scalia Law for many years. I don't think I ever met Rebecca, though.

Random Trivia Watch: The vast majority of conservative Jewish judges since the Reagan era have been men. If Taibleson is confirmed, she will join Neomi Rao as one of two Trump-appointed Jewish women.

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[Josh Blackman] An Unfair and Uninformed Attack On Rebecca Taibleson's Jewish Faith

[The Jewish Federation is a widely regarded Jewish charity that supports all Jews, and it is beyond the pale to attack a person based on their Rabbi.]

Last month, I wrote about President Trump's nomination of Rebecca Taibleson to the Seventh Circuit. In recent weeks, I've heard rumors of opposition to Taibleson's nomination on the right. All candidates should be subject to public scrutiny, but one set of attacks, I think, crossed the line.

Taibleson has been attacked for donating a small sum of money to the Milwaukee Jewish Federation. In most cities with a Jewish population, the Federation exists as an umbrella organization that supports all Jewish causes. The Federation supports Jewish education, summer camps, services for seniors, helps Jewish people in times of crisis, and more. To be sure, there are Jewish people on the far left of the aisle. (Trust me, I know.) And they support all sorts of DEI activities. But the Federation also supports conservative and orthodox groups as well. And in our current moment, the Federation has been steadfast on support for Israel. Am Yisrael Chai. The people of Israel live.

My kids go to a JCC camp, which is funded by the Jewish Federation of Houston. Do I approve of everything the Federation does? Of course not. But I support much of their work, and have financially supported the Federation of the years.

I agree with Mike Fragoso's analogy to Catholic Charities:

But, you see, Taibleson donated a paltry sum to the Milwaukee Jewish Federation and they support LGBT rights. The Milwaukee Jewish Federation is the blanket Jewish social-services organization in Milwaukee, sort of like a Jewish version of Catholic Charities. Should we think that Brett Kavanaugh supports open borders because he volunteered for Catholic Charities? That will be news to the illegal aliens getting caught up in Los Angeles's renewed ICE sweeps. The fact is that you can infer malice in most any charitable act if only you choose to approach it in bad faith.

Another attack is far more scurrilous: that the Rabbi who married Rebecca and her husband supports LGBT causes. I think going after a person's spiritual leader, and house of worship, is beyond the pale. Full stop. The Religious Test Cause, whatever it means, should ensure that we do not scrutinize how a person worships the almighty. Moreover, most Reform synagogues have inclusive policies for gays and lesbians. But that doesn't mean everyone who attends the synagogue agrees on those issues. As I've said many times before, there is no single standard of Judaism. There is no Jewish equivalent of a pope. In a given synagogue, worshippers are not required to agree with their rabbi on everything or anything. Indeed, it is an old pastime for people to complain about everything their rabbi says and does.

Do we really want to start scrutinizing the particular religious beliefs of a judicial candidate? I think the answer has to be no.

Tomorrow is Rebecca's hearing, on Constitution Day fittingly enough. I hope these attacks concerning religion stay out of the proceedings.

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[Eugene Volokh] Ex-Congressman George Santos Loses Lawsuit Against Jimmy Kimmel and ABC

From Santos v. Kimmel, decided today by Second Circuit Judge Raymond Lohier, joined by Judges José Cabranes and Richard Sullivan:

Santos's suit arose after Kimmel, using various fictitious names, submitted requests to Santos for personalized videos through the Cameo platform. Santos fulfilled each request, and Kimmel then aired the videos on JKL as part of a mocking series of segments titled "Will Santos Say It?" …

[1.] In a copyright action, the affirmative defense of fair use "excuses what might otherwise be considered infringing behavior, allowing courts to avoid rigid application of the Copyright Act when it would stifle the very creativity the Act is meant to promote." Under the Copyright Act, we consider the following non-exclusive factors in determining whether fair use has been established: "(1) the purpose and character of the use … ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used … ; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

In assessing the "purpose and character of the use" factor, we "focus[ ] chiefly on the degree to which the use is transformative, i.e., whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character." … Santos does not dispute the District Court's finding that the purpose of [Kimmel's] allegedly infringing use was "to comment on the willingness of Santos … to say absurd things for money." He argues instead that this was also his original purpose in making the videos.

But whether a secondary use is transformative turns on what a reasonable observer thinks, not the subjective intent of the copyright holder or that of the secondary user. As Santos's original allegation acknowledges, a reasonable observer here would think the videos conveyed "feelings of hope, strength, perseverance, encouragement, and positivity," not a willingness to say absurd things for money.

Santos also contends that Kimmel's false representations demonstrate bad faith and thus nullify the fair use defense. We disagree. It is true that "[f]air use presupposes good faith and fair dealing." But Santos's complaint contradicts any claim of a purpose on the Defendants' part to "supplant" Santos's "commercially valuable right" in the videos. To the contrary, the complaint paints a portrait of defendants motivated by (sarcastic) criticism and commentary. We thus agree with the District Court that the first factor strongly supports a finding of fair use….

[I]t is [also] clear on the face of Santos's complaint that Santos has not suffered market harm within the meaning of the fourth fair use factor because "[w]e ask not whether the second work would damage the market for the first (by, for example, devaluing it through parody or criticism), but whether it usurps the market for the first by offering a competing substitute." … "[T]he unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market." …

[2.] Santos[ alleges] direct breach of contract … under the Cameo Terms of Service. Santos is not party to the Terms of Service to which users (like Kimmel) must agree and that Santos alleges were breached. Under Illinois law, which governs the Terms of Service, there is a "strong presumption against conferring benefits to noncontracting third parties." Indeed, "the implication that the contract applies to third parties must be so strong as to be practically an express declaration." Here, Santos identifies nothing close to an "express declaration" that the relevant provisions of the Terms of Service apply to him or other noncontracting parties. Indeed, other provisions of the Terms of Service do contain third-party beneficiary language, indicating that when the parties to that agreement intended to allow provisions of the contract to be enforced by third parties, they said so expressly.

[3.] We next address Santos's breach of implied contract claim. Under New York law, which governs this claim, we consider "the intent of the parties and the surrounding circumstances" to determine "[w]hether an implied-in-fact contract was formed and, if so, the extent of its terms." In this case, however, Santos's complaint does not "allege, in nonconclusory language, … the essential terms of the parties' … contract, including those specific provisions of the contract upon which liability is predicated." Nor does Santos plausibly allege that there was "an indication of a meeting of minds of the parties constituting an agreement" that Kimmel would adhere to the Terms of Service.

[4.] Finally, Santos challenges the District Court's dismissal of his fraudulent inducement claim for failure to allege any out-of-pocket loss as required under New York law. We agree with the District Court's conclusion that Santos failed to allege that he suffered any actual out-of-pocket loss as the victim of the alleged fraud…

Nathan Siegel, Eric Feder, and Raphael Holoszyc-Pimentel (Davis Wright Tremaine LLP) represent defendants.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] Plaintiff Must "Reconcile Herself to the Fact That Litigation Is Often Accompanied by Public Attention and Scrutiny"

["Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them."]

Owen v. Askew, decided today by Judge Ann Aiken (D. Ore.) rejected Plaintiff's Emergency Motion for Order to Show Cause (see also this supplement), seeking to hold defendant Boyce "in contempt for violation of the preliminary Injunction." That preliminary injunction, which was narrower than the TRO I had blogged about, "enjoin[ed] Defendants from engaging in harassment directed at Plaintiff or her business and particularly from seeking to have Plaintiff's online storefronts removed during the pendency of this action." From the court's opinion:

Plaintiff asserts that Ms. Boyce has commented on the ongoing lawsuit and that Plaintiff has been the target of hostile commentary on the Internet by third parties. The motion and its supporting exhibits do not show that Ms. Boyce has engaged in harassment of Plaintiff.

Nor does it show, beyond Plaintiff's speculation, that she has encouraged others to do so. The various Emergency Supplements include voluminous exhibits showing third parties expressing their support for Ms. Boyce or their antipathy to Plaintiff, but these comments do not constitute harassment and, even if they did, the Preliminary Injunction does not serve to enjoin individuals who are not before the Court.

Plaintiff complains that Ms. Boyce has "mocked" these proceedings and expressed her opinion that she will ultimately prevail, but it is not clear how Plaintiff believes either sentiment is a violation of the Preliminary Injunction. Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them. If Plaintiff wishes to proceed with this action, she must reconcile herself to the fact that litigation is often accompanied by public attention and scrutiny.

Plaintiff's filings point to various statements made about the case by third parties, some of which are just harsh criticism of plaintiffs, but some of which might be seen as threats (e.g., "White bitches always steal ima kill you"). It also points to what seems to be a call for violence against the judge ("The judge who put a gagging order on the true creators of the magnetic hair clip, needs to be taken out! It's because of racist white people in positions of authority, why racism still goes unjecked today. The judge needs to be eradicated, eliminated, taken out!!"). But the judge's point is that Boyce can't be held in contempt based on those third party statements, even if they stemmed from Boyce's criticisms of plaintiff and of the earlier TRO opinion.

The general sentiments in the opinion are right, I think, though this still leaves the question of what constitutes forbidden "harassment." The short opinion doesn't tell us. Neither does the preliminary injunction. And, based on decades of studying harassment laws of various sorts, I don't think there's a well-established legal definition of the word "harassment."

Lay dictionary definitions (e.g., "to vex, trouble, or annoy continually or chronically") are generally too vague to be useful. There are more precise definitions in various laws, but they vary sharply from law to law.

Some statutes define harassment to include only threats. Some define it as unwanted speech to a person. Some define it as including at least certain kinds of unwanted speech about a person that is sufficiently distressing. Some define it to cover speech that creates a "hostile, abusive, or offensive environment" in a workplace, educational institution, place of public accommodation, or the like based on race, religion, sex, sexual orientation, and the like. Some expressly exclude speech or conduct that has a "legitimate purpose," though generally without defining which purposes count. I therefore worry about these sorts of injunctions that ban "harassment," without any real definition of the term.

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[Jonathan H. Adler] What Should We Call the "Shadow Docket"?

[Should it be the interim docket? The emergency docket? The emergency orders docket? The short order docket? Something else?]

In today's New York Times, Adam Liptak reports on the emerging debate among commentators and Supreme Court justices about what to call the Supreme Court's docket of requests for emergency or interim relief.

As Liptak notes, this docket was initially coined the "shadow docket" by Will Baude in an article that sought to draw attention to this component of the Court's work, and bring it out of the shadows. Mission accomplished. This aspect of the Court's work is now analyzed and debated.

Now that the "shadow docket" is no longer in the shadows, does it need another name? As I noted here, Justice Kavanaugh thinks it should be called the "interim docket." Liptak reports on what other justices have said.

Justice Elena Kagan said in July at a judicial conference that she has used the term "shadow docket" in dissent "when I was feeling particularly annoyed." . . .

Justice Samuel A. Alito Jr. is not a fan of such critiques. In a 2021 speech, he said the term "shadow docket" was nothing less than an assault on the legitimacy of the court.

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," he said. "This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution."

Most justices seem to have settled on the "emergency docket" to describe the court's fast track. Justice Kagan said that was her preferred term, and Justice Amy Coney Barrett said the same thing last week on the "Advisory Opinions" podcast. . . .

Professor Baude, whose article started the debate, said last week that "interim orders docket" was fine with him. But he added that he regrets nothing about coming up with "shadow docket."

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[Jonathan H. Adler] Why Trying to Undo the Endangerment Finding Is A High-Risk (and Low-Reward) Deregulatory Strategy

[EPA Administrator Lee Zeldin says the Endangerment Finding is the "holy grail" of climate policy. Perhaps it's really they great white whale.]

Environmental Protection Agency Administrator Lee Zeldin is pursuing an aggressive strategy to reduce the burden of environmental regulation on the American economy. In line with the Trump Administration's Executive Orders, he is emphasizing deregulatory measures relating to energy development and consumption, with a particular focus on climate change. As I have noted before, some parts of this deregulatory agenda are more legally defensible than others.

My latest Civitas Outlook column focuses on Zeldin's effort to roll back EPA climate regulation, and where the EPA may face difficulty.

Zeldin's most ambitious undertaking in this regard may also be the most legally vulnerable. On July 29, the EPA proposed to not only repeal regulations limiting greenhouse gas emissions from new motor vehicles, but also to rescind the so-called "endangerment finding"—the legal predicate for nearly all of the EPA's greenhouse gas regulations under the Clean Air Act. In this regard, the EPA is not seeking merely to undo regulations from the Obama and Biden administrations. It is also seeking to make it more difficult for future administrations to put such regulations back in place unless and until the EPA is instructed to do so by Congress. This is a high-risk strategy. . . .

The primary reason it is difficult to undo the endangerment finding is that the statutory standard is so easy to meet. For purposes of the Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely effects of increased atmospheric concentrations of greenhouse gas emissions over any given time period. Rather, the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of greenhouse gases in the atmosphere can have negative effects on health or welfare—effects which the Act defines to include the impact on climate, "economic values," and "personal comfort and well-being."

While the EPA suggests that a less-alarmist interpretation of existing climate science is one reason to undo the endangerment finding, relying upon a draft report prepared for the Department of Energy, its primary argument is that the Clean Air Act "does not authorize the EPA to proscribe emission standards to address global climate change concerns." The problem is that this argument is almost certainly foreclosed by Massachusetts v. EPA, which expressly concluded that the Act "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." The EPA suggests one way to address this constraint is to note that domestic motor vehicle emissions are a small (and shrinking) share of global emissions, but Section 202 of the Clean Air Act (unlike some other provisions of the Act) conspicuously lacks any requirement that motor vehicle emissions contribute significantly to the problem.

In its proposed rulemaking the EPA tries to argue that intervening Supreme Court decisions counsel a reconsideration of what the Clean Air Act means. Under these decisions, most notably West Virginia v. EPA and Loper Bright Enterprises v. Raimondo, the EPA argues that the Clean Air Act should not be interpreted to grant the EPA authority to regulate greenhouse gas emissions in order to control climate change. Were it a matter of first impression, this argument would have substantial force (especially before the current court), but that is not where we are. The Massachusetts decision may have been wrong (as I believe it was), but it nonetheless represents the Court's authoritative interpretation of what the Clean Air Act provides on this point, and the Supreme Court rarely reconsiders its prior statutory holdings.

While many critics of the endangerment finding want to focus on climate science, it is worth noting that the primary arguments the EPA put forward in its proposed rulemaking are legal, not scientific. The EPA references the recent Department of Energy Climate Working Group report that critiques prior National Climate Assessments and presents a less alarmist view of climate science, but the EPA (correctly) recognizes that it is the legal issues here that will (and should) predominate.

Speaking of the Climate Working Group, it is apparently no more. After the initial report was released and put out for public comment, environmentalist organizations sued, claiming DOE violated the Federal Advisory Committee Act (FACA), and asked a court to enjoin the federal government from relying upon the report in any form. While it was unlikely a court would embrace this extreme remedy, it appears concerns about FACA compliance going forward convinced DOE to disband the working group, and that is what the Energy Secretary did. Going forward, this may make it more difficult for the EPA to rely upon the group's work in the endangerment finding repeal rulemaking, as it was only a draft report, and it is not clear how it will be revised in response to public comment if the working group no longer exists.

My Civitas Outlook column concludes:

Administrator Zeldin has referred to the endangerment finding as "the holy grail of the climate change religion." Perhaps so. But recall that in the Arthurian legend, only the purest of heart and soul may reach the grail. Accordingly, it may take a purer legal strategy, and one that relies upon Congress, if the endangerment finding is to be undone.

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[Eugene Volokh] Leonard Cohen's "There Is a War" (First Released 1974)

There's more going on in the song, but here's an excerpt (actually, two excerpts merged, out of order) that's been on my mind; it seems pretty clear that Cohen's commentary is not an endorsement:

There is a war between the rich and poor
A war between the man and the woman
There is a war between the left and right
A war between the black and white
A war between the odd and the even …
There is a war between the ones who say there is a war
And the ones who say that there isn't

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