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Gorsuch Misled The Senate On His Radical “Chevron” Opinion – Shamelessly Deployed A “Charlie Brown” Analogy To Mask Corporate Interests

March 23rd, 2017 No comments

Gorsuch is a fundamental threat to the “New Deal Administrative State”

Gorsuch hides corporate deregulatory interests behind undocumented immigrants

From the bottom of my heart”

Why can’t I free your doubtful mind
And melt your cold, cold heart. ~~~ Cold, Cold Heart (Nora Jones)

President Trump’s Supreme Court nominee Neil Gorsuch misled the Senate Judiciary Committee in a way that was as shameful as it was brazen. Let me explain, based on the transcript and an amazing exchange with Senator Feinstein.

I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”.

The effectiveness and enforceability of virtually all environmental and public health protection laws passed by Congress are impacted by this legal principle.

The legal issue revolves around how executive branch agencies adopt regulations to implement federal law passed by Congress and how courts review those regulations.

To condense a complex legal debate, Judge Gorsuch has questioned how courts should review executive branch agency regulations. He views the current legal doctrine as usurping Congressional legislative and judicial power.

Gorsuch wrote that the prevailing legal doctrine – known as “Chevron deference”:

permit(s) executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. (see Judge Gorsuch’s concurrence at page 15).

Gorsuch is fixated on “power” – he is not some neutral objective “umpire calling balls and strikes”.

There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions  on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.

Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.

If adopted by a conservative Supreme Court – threaten the foundations of the New Deal and all federal environmental and and public health protections.

Gorsuch faced a question from Senator Feinstein on his “Chevron deference” analysis written in his Gutierrez opinion on day 2 of the Senate Judiciary Committee’s  confirmation hearing. Following a line of questions of labor rights and whether Gorsuch would protect the “little guy”.

After Gorsuch insists he’s a “fair judge” – “from the bottom of my heart” – Feinstein asked: (watch and listen at time 1:01:20)

Let’s talk Chevron. That’s been used thousands of times….[Feinstein then discusses legislation establishing CAFE fuel standards and the need for experts to set regulatory standards]…. Here’s the point:… what we said in the legislation was that science would prevail…. What’s wrong with that? How else could we have done it?

Gorsuch replied:

I’m not aware of anything wrong with that Senator. I’ve never suggested otherwise.

That denial is false and misleading. So, Feinstein disagrees and responds:

But what you said is that Congress could not legislate by leaving some of the rules up to the scientists or other professionals in the departments.

Gorsuch then continues to mislead:

I appreciate the opportunity to correct this misunderstanding. The case I think you are referring to is Gutierrez. It involved an undocumented immigrant to this country.  …. [Gorsuch outlines the facts of the case] … The Board of Immigration Appeals says, in their infinite wisdom, that our interpretation was wrong. Chevron. You have to undo your precedent that this man relied upon. And he now had to wait outside the country not just 10 years, but 13 or 14. It took them so long to make up their mind.  Senator, that reminded me of, you know, when Charlie Brown is going in to kick the ball and Lucy picks it up at the last minute….. When an Executive bureaucracy can overturn a judicial precedent without an act of Congress. That’s what the case was about.

Where to begin with this bullshit?

Gorsuch shamelessly claims to have been concerned with a 3-4 year delay in allowing an immigrant to enter the country. But Gorsuch ignored and no one mentioned the actual text of his opinion, which is concerned about “power”.

Senator Feinstein, to her credit, immediately called him out for trying to suggest that he had “not suggested otherwise” with respect to her example of federal rule making that relies on Courts deferring to experts and scientists.

The Gorsuch reply was completely misleading and – by creating the apparance that the case was about protecting undocumented immigrants – and it was shameful. Right wingers do this all the time, i.e. they find sympathetic sounding plaintiffs (e.g. “Citizens United”, “Hobby Lobby”) to cover for corporate attacks on government protections.

Gorsuch made it appear that his opinion reflected an individual fact and case specific dispute and that it protected an undocumented immigrant from an arbitrary and repressive government agency. But in reality, Gorsuch wrote an attack on a broad and long standing presidential legal doctrine with widespread implications far beyond the scope of the individual immigration case before him. So much for judicial restraint. Gorsuch also violated his so called respect for and reliance on “precedent”.

The “Charlie Brown” analogy was totally misleading as well. A momespun homily to mask the exercise of raw power.

That is total bullshit.

Gorush wrote broadly – not about the facts of the case – and attacked a legal doctrine. He was engaging in judicial activism (right wing version) and went way beyond an individual case and controversy and the facts and law of that case. This is what he wrote: (see Judge Gorsuch’s concurrence at page 15).

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.

Gorsuch was really concerned about raw power – the “elephant” and the “behemoth” of federal regulatory agencies – not Charlie Brown or undocumented immigrant interests.

Corporate interests are seeking to use Gorscuh’s legal views to dismantle government regulation.

That’s why groups like the Federalist Society and the Heritage Foundation and the Koch Brothers recruited and support the Gorsuch nomination.

His views could strip federal regulatory agencies of powers to implement and enforce federal laws and lead to a dismantling of New Deal and environmental and public health protections.

He must be stopped, at all costs.

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Trump Partnership “For The Birds”

March 23rd, 2017 No comments

Betrayal By Bird Boxes For Billionaires In Bedminster

“Give me Liberty, or Give Me a Grant”

“for the birds – worthless; undesirable. “This television program is for the birds.

Donal Trump has a “partnership” with the NJ Audubon Society.

Screen Shot 2017-03-23 at 1.21.58 PM

Trump expressed pride in that partnership:

“I take great pride that the US Fish and Wildlife Service and NJ Audubon recognizes and validates the environmental contribution we have made with the original design of our two world class golf courses in Bedminster. They currently provide for over 200 acres of habitat for indigenous and migratory grassland birds. With this partnership we look forward to their professional guidance in further improving and expanding the habitat at this wonderful property.” said course owner Donald J Trump.

In like fashion, NJ Audubon praised Trump:

“Trump National is demonstrating an outstanding commitment to sustaining native wildlife populations.” said Eric Stiles, President for New Jersey Audubon. “They are solidifying a symbiotic relationship with the surrounding community to foster environmental awareness and a conservation ethic while enhancing wildlife and natural systems in New Jersey.”

Trump has demonstrated “Outstanding commitment”?

Give me a fucking break.

The NJ Audubon Society’s mission is to protect birds:

NJA fosters environmental awareness and a conservation ethic among NJ’s citizens; protects NJ’s birds, mammals, other animals, and plants, especially endangered and threatened species; and promotes preservation of NJ’s valuable natural habitats.

The US Fish and Wildlife Service finds that the number one threat in the “Top Common Human-caused Threats to Birds” is cats.

But when Donald Trump bragged about “grabbing some pussy”, he wasn’t trying to capture cats to reduce bird mortality.

So What Explains This Twisted Partnership?

Today is the 242nd anniversary of Patrick Henry’s famous quote:

Give me liberty, or give me death!

Eric Stiles, CEO of NJ Audubon might say:

Give me Liberty, or give me a grant

NJ Audubon has touted CEO Stiles’ “entrepreneurial conservation”.

Rapid growth in Audubon’s staff and budget was touted as a major accomplishment when Stiles was named successor to Tom Gilmore: (Audubon press release)

Stiles came to New Jersey Audubon in January of 2002 to serve as Vice president for Conservation and Stewardship. Stiles grew his department from a staff of 1 and a budget of less than $100,000 to a staff of 8 and a budget in excess of $1,000,000.

The question is, what is Stiles willing to do to continue that growth in budget and staff? (and collect that $102,000+ salary)

We don’t know exactly how much – if any – Trump money has changed hands to buy this twisted partnership.

But we do know that Trump is not the only billionaire that NJ Audubon has a twisted partnership with, see:

Trump has mounted a systematic across the board assault on protections, institutions, and science we rely on to not only protect birds, but human health and the environment.

For any self described “conservation” group to maintain a “partnership” with Trump in light of these facts is a disgrace.

We’re still waiting for the NJ Audubon press release announcing termination of this twisted “partnership”.

We’re still waiting for the environmental and conservation community – across the entire country – to shame NJ Audubon.

We’re still waiting for the media to cover the story.

We’re not going away.

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Stop Flogging RGGI To Score Political Points

March 21st, 2017 No comments

Symbolic gesture is deeply flawed and not a model for next Administration

The bill is silent on ALL these key issues and must NOT become the model for the next administration – so why are environmentalists supporting such a FLAWED symbolic empty gesture?

NJ Spotlight reports that the Senate Environment Committee heard a bill yesterday designed to restore the RGGI program, see:

I wish the NJ Democrats would stop flogging RGGI to score political points. I’m tired of the pure politics and “sending a message” with empty symbolic gestures. And flogging RGGI is not only a symbolic gesture, it diverts attention from much needed reforms.

President Trump and his EPA Administrator Pruitt do not care about RGGI or the NJ Legislature.

Furthermore, the Obama Clean Power Plan is on hold and before the US Supreme Court, so EPA Administrator Pruitt doesn’t even have to repeal it, just have the AG Sessions Justice Department not continue to litigate it, petition the Court to dismiss the case, or simply ignore enforcing it on the State’s

(BTW, few people seem to understand that the Obama EPA – following the Bill Clinton Administration’s “State Partnership” policy that effectively gutted EPA oversight of State programs to appease Newt Gingrich’s “Contract On America” “federalists” – delegated implementation of the Clean Power Plan program to the State’s via Clean Air Act SIP amendments. Sates can drag their feet, or EPA could simply look the other way in oversight of State CPP SIP amendments. Or EPA could relax compliance dates and technical requirements, effectively gutting the program in ways that environmental groups would be virtually powerless to stop.)

Worse, the NJ Senate bill – if passed in its current form and signed by the next Gov. – ignores serious flaws in the current RGGI law and would make the problems WORSE. It is NOT a model for the next administration (unless you’re PSEG or a refinery or a natural gas power plant, all of whom get huge subsidies and breaks under RGGI). Even the sponsors of the bill realize that Gov. Christie will veto it, as he has done twice before.

That’s right – the bill would allow a significant INCREASE in current emissions of greenhouse gases. Here’s why:

1. The bill is tied to the negotiated 2005 RGGI states MOA – not only has that MOA been renegotiated for, among other reasons, to ratchet down on the initial cap, but that means the NJ emissions cap would remain FAR ABOVE CURRENT NJ EMISSIONS.

If the legislature is serious, they must REDUCE THE CAP!

2. PSEG has shut down 2 fossil plants and announced the shutdown of 2 more since the 2005 MOA and NJ cap allocation.

The bill would essential grandfather old PSEG emissions, allowing PSEG to profit from the sale of non-existent emissions! That is the kind of abuse of market trading schemes that we were able to use to kill the “Open Market Emissions Trading” (OMET) program. If you doubt any of these conclusions, please read the RGGI bill:

3. The existing RGGI law has a $7 per ton “reset”. If RGGI auction allowances exceed $7 per ton, all bets are off and the program must be reviewed by the Legislature. That $7 per ton reset is FAR TOO LOW – the social costs of carbon is over $100 per ton according to EPA. Other research suggests an even higher SCC.

If the Legislature and next administration are serious, that $7 per ton “cost containment” provision must be repealed and the 2005 cap reduced and the MOA renegotiated.

4. The current RGGI law fails to address methane emissions and lifecycle emissions. That is a critical omission, because NJ has become so heavily reliant on natural gas and fracking has boomed. When lifecycle methane emissions are considered, recent research suggests that fracked gas is as bad or worse than coal from a global warming perspective.

AGAIN, if the legislature and next administration are serious, methane and lifecycle emissions must be included in NJ’s emissions baseline and part of the enforceable regulatory emissions reductions requirements.

5. The Christie DEP abandoned a greenhouse gas emissions inventory rule – so we no longer have an accurate emissions baseline – that problem needs to be remedied by the Legislature.

6. The RGGI MOA and program are too narrow in scope and are limited to the power sector.

If emissions trading is to replace command and control regulation, it MUST BE BROADENED to address all sectors.

7. The RGGI law fails to address emissions from power consumed in state but generated in another state. Those emissions must be included.

8. The RGGI law can be interpreted to serve as the market based substitute for DEP regulation of GHG emissions, and thereby effectively replace regulation.

The Legislature needs to explicitly affirm DEP’s authority to regulate emissions from all sectors and tie those regulations to attainment of specific numeric emissions reductions goals and timetables. They can look to and strengthen the Global Warming Response Act for an example of goals and timetables.

The bill is silent on ALL these key issues and must NOT become the model for the next administration – so why are environmentalists supporting such a FLAWED symbolic empty gesture?

[End Note: The hypocrisy here is stunning.

The sponsor of the bill, Senate President Sweeney, was the sponsor of several amendments that gutted the original RGGI bill.

The Sweeney amendments to the original RGGI bill were SO BAD, that environmentalists not only withdrew their support for the bill, but actively OPPOSED its passage.

We do not forget this kind of bullshit –  wonks can read the Statement on the Senate Committee substitute amendments and read the substitute bill S2976[SCS] to document that claim.

But apparently others do. ~ end]

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Environmentalists Must Publicly Challenge Congressional Republicans On Trump EPA Budget and Regulatory Policy

March 20th, 2017 No comments

NJ Spotlight ran a story today – quoting various “experts” – about the impacts of President Trump’s EPA budget, see:

Tell me something I don’t already know.

Aside from the lack of relevance and edge to the story (and grave omissions, like proposing to eliminate the Chemical Safety Board), the usual suspects took the usual cowardly path. Let me explain.

The Trump budget proposal is essentially just red meat for the base. It is written like a press release or campaign statement.

In numerous national press stories since the Trump budget was released, it has been described as “DOA” on a bi-partisan basis by members of Congress.

So, the story now migrates to how Congress – particularly Republicans in the House – will react.

Environmental group leaders obviously know this and know that they need to be pressuring NJ Republicans to publicly speak out against the Trump budget and regulatory policies, which amount to an across the board attack on EPA as an institution and would dismantle science and critical protections for public health and the environment.

So, are these groups asking NJ Republican Congresspersons to speak out against Trump cuts?

Republicans like Lance, Frelinghuysen, MacArthur, LoBiondo, Smith must speak out publicly to defend environmental protections (regulations, enforcement) and EPA as an institution (science, staffing, and budget).

Maybe Rodney can do a dog and pony at Superfund sites and talk about Trump cuts? Where is “coastal champion” Lobiondo? What about the “devolution” of Lance? How about Chris Smith, who thinks he “scored big”?

Environmentalists have to publicly pressure the Republicans in Congress. If they fail, they are cowards.

The criticism can’t be limited to budget issues, and must focus on the Trump regulatory policy and ideological commitment to “federalism” and “states rights”.

States can NOT assume EPA national responsibilities. They lack resources and are under undue influence of economic and political pressure by polluting industries.

My Congressman, MacArthur, just refused to oppose them and refused to take any public position until it’s time to vote on the House floor on the full budget.

Here’s how my CongressmanTom MacArthur responded in a letter today to that kind of pressure from me, acting as a constituent, without the big Foundation Funded megaphone and resources that the environmental groups have. I wrote MacArthur and demanded that he speak out publicly against the Trump attack – so note the cowardice (in bold, which defects and dodges the issue: (MacArthur wrote)

As you may know, I will not have the opportunity to vote on this legislation until it is approved by the House Appropriations Subcommittee on Interior, Environment, and Related Agencies and the full Appropriations Committee. Please know that I will certainly take your views into consideration should such legislation come to a vote before the House of Representatives.

In addition to NJ environmental groups failing to put this kind of pressure on NJ Congressional Republicans, there are additional hypocrisies that arise.

Where were all these groups when NJ Gov. Christie was doing virtutally the same thing as Trump, on both the budget and regulatory policy side?

Did NRDC or NJ Audubon or the Delaware Watershed Wm Penn Foundation grantees do ANY work on Barnegat Bay (as Christie DEP abdicated CWA TMDL requirements) or the Delaware River and Bay TMDL?

Or on DEP issued NJPDES permits for new treatment plants on lower Delaware tributary Crosswicks Creek? Or when Gov. Christie’s regulatory freeze killed DEP climate emissions inventory and Global Warming Response Act programs? (aside from RGGI, which NRDC did work on). Or DEP’s abdication of the NY Harbor TMDL or floatables plan? Or climate adaptation? Or numerous clean water regulatory rollbacks? I could go on.

The Obama EPA they consistently supported was no bowl of cherries either.

In a related matter, Trump’s Executive Order regulatory freeze ends tomorrow.

Will NJ Spotlight and all these groups focus on that?

BTW, in a huge irony, it was NRDC litigation that gave us the “Chevron” doctrine on agency deference.

That legal issue is paramount in today’s US Senate Confirmation hearings for Supreme Court candidate Gorsuch.

Where are these well endowed groups on THAT?

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NJ “Citizen’s” Group Gives “Public Service” Award to Corporate CEO

March 17th, 2017 No comments

Brazen Corporate Capture of sold out “progressive” organizations

How does a so called “Citizen’s group”, with an avowed mission of promoting democracy, give a “public service” award to a corporate CEO? (an award named after a corporate CEO)

Via email from Harry Pozycki, Chairman of NJ’s “No blame, Only Solutions” “Citizen’s Campaign”:

Dear Bill —

It is with great pleasure that we announce that Bernie Flynn, President & CEO of the New Jersey Manufacturers Insurance Company, will receive the first ever Koeppe Award for Exemplary Public Service at our gala dinner on April 17th. Ann Koeppe will present the award after remarks by Sharon Taylor, Senior Vice President, Corporate Human Resources, Prudential Financial and Chair, The Prudential Foundation.

Should I be mollified by the fact that tickets for a Table start at only $1,500 – or that individual tickets are a bargain at $150?

But the “Citizen’s Campaign” isn’t the only so called “public advocacy” group captured by corporate cash and corporate oriented elite Foundation grants, as I’ve written here numerous times – NJ Audubon, Sustainable NJ, NJ Future, and Mike Catania and the Duke Foundation are just as bad or worse than Citizen’s Campaign and are full bore sold out corporate whores.

Other NJ groups are headed in that sold out direction, with corporate, Foundation, and fundraising stunt money driving priorities, programs, and tactics, e.g. the Highlands Coalition, NY/NJ Baykeeper, Ironbound Community Corp, ALS, Clean Ocean Action, NJ LCV, et al. – (readers: shoot me a note if I missed someone).

Other reputable groups like PPA, NJCF and Stonybrook Watershed are on the bubble due to sham, destructive, diversionary, and/or compromised weenie initiatives like the Keep It Green Coalition, Rethink Energy NJ, and the Penn Foundation’s Delaware Watershed scam.

It is a disgusting display, particularly in light of the national emergency exacerbated by the the Trump circus. Resistance to that demands unity, which is made far more difficult by the corporate whoring.

Full disclosure: I’ve purchased NJ Manufacturers home and car insurance for over 30 years. During that time, I filed exactly one claim for a minor car accident in my own driveway (slid on ice).

I have been satisfied with the NJM service, until very recently, when they raised my car insurance rates dramatically – by over 25% – based exclusively on my economic situation and downgraded credit rating!

So, NJM discriminates against people based on low income –

Maybe Mr. Democracy Harry Pozycki might ask the NJM CEO about the “public service” justification for that.

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