Something That Bears Repeating In Light Of Supreme Court’s EPA Ruling

Not all regulation is over-regulation

Prior to the existence of the EPA, the Cuyahoga River in Ohio repeatedly caught fire (Michael Schwartz Library at Cleveland State University)

The Supreme Court’s ruling limiting the power of the Environmental Protection Agency (and by that ruling, other agencies too), probably would’ve happened anyway. 

By that I mean even before the current makeup of the court. When Justices Kennedy and Scalia are still there. Or even minus the “stolen seat”.

Which is why I haven’t addressed it with the same ferocity or urgency as the other recent precedent-toppling Supreme Court cases that are very much rooted in radical Christian fundamentalism: abortion, separation between church and state, public school prayer.

When Justice Kennedy sided with Liberals on the Court, most notably ruling in favor of same-sex marriage, these were moral and ethical issues. Not business-related. So while I can’t say for sure Justice Kennedy would’ve voted the same way his replacement and heir Justice Kavanaugh did, he was pretty pro-business down the line.

In fact, the few social issues he sided with Liberals on tended to have pro-business components if you sit down and think about it. In fact, the Koch brothers, who were/are (one of them’s now dead) often presented as the paragons of pro-business-deregulate-everything conservatism, were in favor of same-sex marriage. Also in favor of immigration reform. Why?

Well, could be because they are true Libertarians and actually do live by a definable code—however despicable sometimes it may be—not just whatever they feel like best meets their theological zeal on a certain day.

Also, it’s good for business: support immigration reform to ensure a flow of cheap labor into the country. Support same sex marriage because makes it a lot easier to hire people, and figure out what benefits they’ll get from the government, and how they’re taxed; really does simplify all that big time for a major employer.

That doesn’t mean I think the Court’s EPA decision was a good one, just that it was pretty much inevitable no matter what, given whom the country has decided to elect as president during the past few decades. And who’s running the more secular aspects of what constitutes civic society and the government’s proper role in it these days, and had been for a long time now.

It’s also something that probably pleases former President Trump, who’s own personal theology might best be described as “deregulate everything”. And let’s face it: he personally could’ve given less of a crap about abortion either way: he just let radical religious fundamentalists have that one as a favor, in exchange for their continued political support. Especially in the face of his many moral transgressions.

So the gist of the EPA ruling (by Chief Justice Roberts; though it seems Justice Alito has sort of become the acting Chief Justice on some days), is that the agency can’t embark on any new policies unless they are specifically given the OK through legislation from Congress. 

Why is this bad? Because part of the point of having agencies like the EPA is to have experts in place to take broad-stroke legislation from Congress and make it specific to events or needs that come up, and may be impossible to pre-define or pre-identify. 

In other words, it’s their job. Congress—the Legislative Branch of government—makes laws. And it’s the job of the Executive Branch to figure out how best to implement them. 

Now the EPA, nor presumably any other federal agency will not be able to act aggressively on anything that isn’t already pretty much fully spelled out by Congress.

Now, this is a dream for Koch Industries and the like, who fight like crazy mostly through dark money contributions to political candidates and causes, to be able to self-regulate.

What’s the problem with that? When given the opportunity to self-regulate, industries tend not to do it well. And why should they? They operate in the interest of ever-expanding profits, not in the public interest.

So then you get things like Boeing’s 737 Max disaster, due in large part to the company being allowed to approve of a lot of stuff it was doing (badly) by itself; rubber-stamped by the government. Or OxyContin; kind of the same story. Or Facebook. Or the S&L crisis.

Industries have a long and well documented history of not regulating themselves well when given the opportunity to do so. Even though they always say they will. 

And now they’ll have expanded opportunities, with regulators—per the Supreme Court—never being able to act really proactively, even if they see huge, looming, imminent danger. In the past, when given similar opportunities to what the Supreme Court’s just given them, the actions of various industries, as I’ve just demonstrated, has often resulted in disaster.

It also arguably encourages U.S. industry to be less competitive globally. Take what Trump wanted to do with cars for instance: by rolling back emissions standards, he would’ve cut costs for U.S. car makers, but also made them less able to compete in overseas markets where regulation is already much stricter. The upshot would’ve very likely been an industry increasingly dependent on protectionism (Trump loved his tariffs) and nearly-inevitable taxpayer funded bailouts.

In fact, when President Nixon founded the EPA it was in part because a river in Ohio was repeatedly catching fire! Should Congress have needed to pass a law “rivers should not be on fire” before any action could be taken?

To answer that question I’ll end where I started: All regulation is not over-regulation.