And then there’s the business community’s penchant for whining about “regulatory uncertainty” while spending tens of millions more to mount legal challenges to every new regulation, appealing all the way to the Supreme Court if necessary.
The dirty little secret is that dysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?
Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.
Their latest salvo came just before Labor Day, when a divided three-judge panel threw out rules requiring states to control the air pollution that wafts over their borders into other states. These rules were first ordered up by Congress back in 1970, have been more than 20 years in the making and had already been the subject of two challenges before the D.C. Circuit.
According to estimates by the Environmental Protection Agency, these regulations would prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year. The projected annual compliance cost is $2.4 billion, compared with the annual health benefits of anywhere from $120 billion to $280 billion.
But in reading the 60-page opinion by Judge Brett Kavanaugh, you’d have no clue of this historical, political, economic or health context.
You’d have no idea that hundreds of dedicated, highly trained scientists, analysts and statisticians at the EPA might have spent more than a decade devoted to the extremely complex task of figuring out how much of the ozone or sulfur dioxide in the air in Rhode Island originated in Indiana.
You’d have no idea that legions of government lawyers and economists might have spent a decade listening to, and negotiating with, state officials, industry groups and environmental advocates on an equitable formula for reducing pollution in the least costly way.
You’d have no idea that, in earlier decisions, the same court had found it a reasonable formula resulting in reasonable compliance costs, but sent an earlier version back to be reworked because it didn’t make the air clean enough.