EPA's New Coal Pollution Rules: More Death, More Asthma

[ananda]

LOL. So we have someone who is a Constitutional Originalist here who is telling a French person their opinion is "alien". The irony meter is exploding now.

Check who Jefferson et al. was reading and talking to about the time the Constitution was being hammered out. Oh and who was our primary ally during our war of independence?

Yeah.

Alien indeed.

Alliances change.

 

[SimplyMe]

This is not an example of trading or traffic in commodities; nobody is exchanging commodities for barter.

Is not the power plant selling power, selling electricity? So not sure how they aren't trafficking in a commodity?

But to put it a different way -- if the power plant was throwing their garbage "out the back door" onto a neighboring property, that they don't own, does the government have the right to stop them from doing it? We are essentially talking about the same thing -- just that the "trash" is particulates in the air, and because of this that "trash" can travel long distances, including across state lines, which brings it into the realm of the federal government (particularly since the plant likely also sells electricity across state lines).

To me, this seems like a pretty valid use of the interstate commerce clause of the Constitution -- even if they don't actually sell across state lines -- as their "trash" is impacting other states. The Supreme Court, including "strict constitutionalists" (such as Scalia) have largely upheld these types of ideas.

I would have no objection if the EPA was a legislative arm of Congress, delegated with the task of producing recommendations forwarded to Congress for its approval and vote.

Congress created the EPA and gave them a set of powers. It is part of the Executive arm of government, since they enforce the laws. You can't have something like the EPA as part of the legislative arm per the Constitution.

 

[ananda]

throwing their garbage "out the back door" onto a neighboring property, that they don't own, does the government have the right to stop them from doing it?

If garbage was thrown onto a neighbor's property, that would fall under trespass, not commerce. The neighbor doesn't want the garbage, and isn't trading anything for it.

You can't have something like the EPA as part of the legislative arm per the Constitution.

Why not? Legislative-branch "EPA" advisors/committees recommends rules which Congress can vote on, and separate EPA agents in the executive-branch can enforce the approved rules.

 

[theQuincunx5]

Alliances change.

Yes, as should the Constitution. I was more making fun of your "alien" comment. I mean if you find the Constitution to be of value in light of how it was originally drafted you might want to look at who was influencing the drafters a little closer.

Besides, it isn't really a Constitutional issue. As has been noted: we already have federal regulations regarding environment so your point is moot anyway.

 

[theQuincunx5]

Your concern and priority may not be the concern or possess the same level of priority for others.

And, again, there are Federal Regulations covering this sort of thing. So your point is moot.

Thus, there is the Constitutional rule of law which allow everyone to have a say in the law-making process by providing each of us the ability to express and contribute our own concerns and priorities ... not by dictate of one or a few who think they know better than everyone else.

This is feeling like debating a Junior High School debate team who has taken ONE PHRASE and locked onto it at the expense of the larger points.

I'm sorry you are incapable of actually paying attention to what I've said.

Your opinion is noted. But your point is moot. You lose.

Sorry!

 

[iluvatar5150]

We must use the definitions from the 18th century to understand what the writers of the Constitution meant with the words they used.

You've yet to establish how they understood that definition and how your understanding of their definition is accurate. I contend that your understanding is wrong.

In Gibbons v Ogden, the USSC ruled that even intrastate commerce could be regulated by the feds if it was part of a larger interstate system of commerce. That ruling came down in 1824, only 36 years after the constitution was ratified. The chief justice on that case, John Marshall, was a delegate to the Virginia convention to ratify the constitution. I would think that, of anybody, he would have had a grasp of what the commerce clause meant to the people who originally wrote it.

This is not an example of trading or traffic in commodities; nobody is exchanging commodities for barter.

If garbage was thrown onto a neighbor's property, that would fall under trespass, not commerce.

It's both. As I've pointed out several times now, air pollution is a byproduct of an interstate commercial activity. Waste removal/remediation and health care are also commercial activities. By pumping their commercial waste products into the air, power-generating states are forcing neighboring states to participate in a variety of commercial activities.

Are you promoting anarchy?

Arguably, you are, by denying the realities of the laws that exist.

 

[ananda]

Yes, as should the Constitution. I was more making fun of your "alien" comment. I mean if you find the Constitution to be of value in light of how it was originally drafted you might want to look at who was influencing the drafters a little closer.

Besides, it isn't really a Constitutional issue. As has been noted: we already have federal regulations regarding environment so your point is moot anyway.

It remains a Constitutional issue in my eyes, with unlawful executive-branch regulations in place.

 

[ananda]

And, again, there are Federal Regulations covering this sort of thing. So your point is moot.



This is feeling like debating a Junior High School debate team who has taken ONE PHRASE and locked onto it at the expense of the larger points.

I'm sorry you are incapable of actually paying attention to what I've said.

Your opinion is noted. But your point is moot. You lose.

Sorry!

My purpose is merely to share ideas in the Public forum, and in that sense, I consider it a win.

 

[ananda]

In Gibbons v Ogden, the USSC ruled that ...

I understand that there are various rulings, precedents, etc. I am just pointing out that I believe they are incorrect and unconstitutional.

It's both. As I've pointed out several times now, air pollution is a byproduct of an interstate commercial activity. Waste removal/remediation and health care are also commercial activities. By pumping their commercial waste products into the air, power-generating states are forcing neighboring states to participate in a variety of commercial activities.

I don't agree with that understanding of "commerce". Otherwise, I could say: since you do not practice Buddhism, it impacts my commercial activities, which subjects your practice and religion to regulation.

 

[theQuincunx5]

It remains a Constitutional issue in my eyes, with unlawful executive-branch regulations in place.

Thankfully the issue appears to have already been settled decades ago. But you keep up the good fight.

 

[iluvatar5150]

I understand that there are various rulings, precedents, etc. I am just pointing out that I believe they are incorrect and unconstitutional.

You claim to be taking the originalist position of basing your perception of "constitutionality" on what the framers originally perceived or intended their words to mean. Reasonable people can disagree about whether or not that's the best approach, but that's a separate issue. What I'm saying is that even within the originalist framework, you haven't demonstrated that your claims are correct. Please show us how the framers would have understood the definition of "commerce" to be as narrow as you claim. Can you do that?

I don't agree with that understanding of "commerce". Otherwise, I could say: since you do not practice Buddhism, it impacts my commercial activities, which subjects your practice and religion to regulation.

What is there not to agree with anything I said?

The electricity market is an interstate commercial system.
Electricity is sold across state lines.
Electricity futures are traded across state lines.
Fuel for power plants is purchased and transported across state lines.
There is a cost to removing waste products from power plants, and there are commercial entities that service that market.
There is a cost to treating the negative health and environmental impacts of these waste products (i.e. pollution) and there are commercial entities that service those markets.

If I'm a coal-fired power plant and you're a neighboring state, and I want you to process my industrial waste, I could do one of two things:

I could hire you to do it, or
I could force you to do it by dumping it on you.​

The first is obviously commerce, but the second is, too, since there is still a good or commodity being exchanged. The only differences are that you didn't agree to participate in the transaction, and I cheated you out of payment. Either way, I still get the good/service of having my waste processed.
Additionally, even if you don't want to consider my freedom from waste products a "good", my commercial activity (which is itself interstate) would still compel you to engage in further commercial activities of dealing with my commercial waste products. Commerce in one state triggering commerce in another state is interstate commerce.

 

[ananda]

You claim to be taking the originalist position of basing your perception of "constitutionality" on what the framers originally perceived or intended their words to mean. Reasonable people can disagree about whether or not that's the best approach, but that's a separate issue. What I'm saying is that even within the originalist framework, you haven't demonstrated that your claims are correct. Please show us how the framers would have understood the definition of "commerce" to be as narrow as you claim. Can you do that?

Feel free to look it up: my definition was based on an early version of Bouvier's and Black's Law Dictionary.

What is there not to agree with anything I said?

The electricity market is an interstate commercial system.
Electricity is sold across state lines.
Electricity futures are traded across state lines.
Fuel for power plants is purchased and transported across state lines.
There is a cost to removing waste products from power plants, and there are commercial entities that service that market.
There is a cost to treating the negative health and environmental impacts of these waste products (i.e. pollution) and there are commercial entities that service those markets.

If I'm a coal-fired power plant and you're a neighboring state, and I want you to process my industrial waste, I could do one of two things:

I could hire you to do it, or
I could force you to do it by dumping it on you.​

The first is obviously commerce, but the second is, too, since there is still a good or commodity being exchanged. The only differences are that you didn't agree to participate in the transaction, and I cheated you out of payment. Either way, I still get the good/service of having my waste processed.
Additionally, even if you don't want to consider my freedom from waste products a "good", my commercial activity (which is itself interstate) would still compel you to engage in further commercial activities of dealing with my commercial waste products. Commerce in one state triggering commerce in another state is interstate commerce.

First argument: Releasing air pollution is simply a side-effect of commerce, but is not commerce itself.

• Otherwise, we can argue that religious activity done in one state triggers the side-effect of commercial activity in another state which makes it interstate commerce, thus making your religious activity subject to regulation.
• Or, it can also be argued that: simply because people defecate and releases CO2 into the air after engaging in commerce, those side-effects (defecation and CO2 release) is also interstate commerce, which then makes every activity of a person's whole body, mind, and soul also subject to regulation.

Everything then literally becomes interstate commerce, if you don't limit it to commerce itself, but also include all side-effects of commerce. It is the height of absurdity, and defeats the purpose of having the clause at all.

Second argument: The Commerce Clause gives regulatory authority [the power to prescribe rules over commerce] to the Legislative Branch (Congress) ... not to the EPA which belongs to the Executive Branch.

 

[theQuincunx5]

Feel free to look it up: my definition was based on an early version of Bouvier's and Black's Law Dictionary.


First argument: Releasing air pollution is simply a side-effect of commerce, but is not commerce itself.

• Otherwise, we can argue that religious activity done in one state triggers the side-effect of commercial activity in another state which makes it interstate commerce, thus making your religious activity subject to regulation.
• Or, it can also be argued that: simply because people defecate and releases CO2 into the air after engaging in commerce, those side-effects (defecation and CO2 release) is also interstate commerce, which then makes every activity of a person's whole body, mind, and soul also subject to regulation.

Everything then literally becomes interstate commerce, if you don't limit it to commerce itself, but also include all side-effects of commerce. It is the height of absurdity, and defeats the purpose of having the clause at all.

Second argument: The Commerce Clause gives regulatory authority [the power to prescribe rules over commerce] to the Legislative Branch (Congress) ... not to the EPA which belongs to the Executive Branch.

The courts apparently disagree with you.

https://law.justia.com/cases/federal/district-courts/FSupp/287/624/1492241/

 

[iluvatar5150]

Feel free to look it up: my definition was based on an early version of Bouvier's and Black's Law Dictionary.

lol

John Bouvier was born in 1787. The US Constitution was ratified in 1788. Gibbons v Ogden was decided in 1824. The first edition of Bouvier's Law Dictionary wasn't published until 1839. It's hard to argue that the Constitution was based on his early definition or that Gibbons v Ogden usurped his definition when his dictionary was published later than either of them.

Incidentally, the first edition is available from google books, and the entry for Commerce is on page 337:

https://books.google.com/books?id=YCRAAAAAYAAJ&printsec=frontcover#v=onepage&q=commerce&f=false

COMMERCE The various agreements which have for their object facilitating exchange of the products of the earth or industry of man with an intent to realize profit. Any reciprocal agreements between two persons by which one delivers to the other a thing the latter accepts and for which he pays consideration: if the consideration be money it is called a sale if any other thing money, it is called exchange or barter.

The powers conferred upon congress to regulate commerce among the several states are not confined to the instrumentalities of commerce known or in use when the constitution was adopted but keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances.

It's quite clear from reading the entire entry that he was informed by existing law and precedent.

First argument: Releasing air pollution is simply a side-effect of commerce, but is not commerce itself.

You've still failed to establish why this is a distinction that matters. Is regulating the byproducts of commerce not also regulating commerce?

• Otherwise, we can argue that religious activity done in one state triggers the side-effect of commercial activity in another state which makes it interstate commerce, thus making your religious activity subject to regulation.
• Or, it can also be argued that: simply because people defecate and releases CO2 into the air after engaging in commerce, those side-effects (defecation and CO2 release) is also interstate commerce, which then makes every activity of a person's whole body, mind, and soul also subject to regulation.

Everything then literally becomes interstate commerce, if you don't limit it to commerce itself, but also include all side-effects of commerce. It is the height of absurdity, and defeats the purpose of having the clause at all.

Religious activity is not a commercial activity and it enjoys special protections under the constitution.

Yes, the federal government could institute requirements for containing greenhouse gases (e.g. by requiring bathroom exhaust fans with scrubbers), though the notion that doing so would encapsulate a person's "mind and soul" is patently absurd.

 

[ananda]

The courts apparently disagree with you.

https://law.justia.com/cases/federal/district-courts/FSupp/287/624/1492241/

The key to understanding that ruling is that it was made by a USDC (U.S. District Court) - not a DCUS (District Court of the U.S.).

USDCs are Legislative Branch tribunals & judges over territories belonging to the federal United States. DCUSs are Judicial Branch courts & judges over Constitutional States separate from the federal United States.

 

[ananda]

lol

John Bouvier was born in 1787. The US Constitution was ratified in 1788. Gibbons v Ogden was decided in 1824. The first edition of Bouvier's Law Dictionary wasn't published until 1839. It's hard to argue that the Constitution was based on his early definition or that Gibbons v Ogden usurped his definition when his dictionary was published later than either of them.

Incidentally, the first edition is available from google books, and the entry for Commerce is on page 337:

https://books.google.com/books?id=YCRAAAAAYAAJ&printsec=frontcover#v=onepage&q=commerce&f=false

It's quite clear from reading the entire entry that he was informed by existing law and precedent.

Feel free to find and quote an earlier definition that contradicts that entry.

You've still failed to establish why this is a distinction that matters. Is regulating the byproducts of commerce not also regulating commerce?

They are two different things. One is cause, the other is effect. The fact is, everything is linked in the world, nothing is completely separate, therefore everything is "commerce"? Now that is absurd.

 

[theQuincunx5]

The key to understanding that ruling is that it was made by a USDC (U.S. District Court) - not a DCUS (District Court of the U.S.).

USDCs are Legislative Branch tribunals & judges over territories belonging to the federal United States. DCUSs are Judicial Branch courts & judges over Constitutional States separate from the federal United States.

I don't believe there is such a difference. Perhaps you could show me in the US Code.

It does appear that this is one of the "patriot myths" that some fringe elements like to talk about (see HERE).

But I would be glad to see evidence to the contrary, specifically in the structure of the US courts which you can find HERE

 

[iluvatar5150]

Feel free to find and quote an earlier definition that contradicts that entry.

His definition neither contradicts anything I've said nor requires the narrow interpretation you wish to impose upon it. In fact, his explanation of the flexibility afforded Congress in its application of this principle directly contradicts your claim to the contrary when you said "We must use the definitions from the 18th century to understand what the writers of the Constitution meant with the words they used."

Your entire originalist rationale is a sham. You claim that decisions such as Ogden are unconstitutional because they go beyond what the framers understood "commerce" to be, yet the chief justice in the Ogden case was himself a delegate to the constitutional convention; and the definition you're claiming to support your argument post-dates both the Constitution and the Ogden decision AND offers congress the flexibility to do exactly what you say it says Congress can't do.

You're not interpreting the constitution in the way the framers intended it. You're interpreting it in the way you wish they intended it.

They are two different things. One is cause, the other is effect. The fact is, everything is linked in the world, nothing is completely separate, therefore everything is "commerce"? Now that is absurd.

It's not absurd. It's reality. That reality is why the courts have interpreted this clause so broadly. There's obviously room for disagreement as to where the line should be drawn, but nobody I'm aware of has ever successfully argued what you're arguing.

 

[ananda]

I don't believe there is such a difference. Perhaps you could show me in the US Code.

Quotes from the U.S. Supreme Court:

Regarding the DCUS: "The term "District Courts of the United States," as used in the rules, without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under article 3 of the Constitution. Courts of the Territories are legislative courts, properly speaking, and are not District Courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a "District Court of the United States." U.S. Supreme Court, Reynolds v. United States, 98 U. S. 145, 98 U. S. 154

Regarding the USDC: "The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court." U.S. Supreme Court, Mookini v. United States, 303 U.S. 201

It does appear that this is one of the "patriot myths"

Care to try again?

 

[ananda]

You're interpreting it in the way you wish they intended it.

Marshall was only one delegate, and a federalist, who happened to be in power as Chief Justice. There were other delegates, anti-federalists, who opposed such clauses.