Here are news reports on today’s oral argument in Sackett from CNN, CNS, Wall Street Journal, Bloomberg, and MSNBC (which laughably calls it a case “of interest to big business, Ron Paul,” and therefore evil and greedy and motivated by hatred of helpless little animals…. Note that the MSNBC article falsely claims that the NRDC “filed briefs” on behalf of the EPA. In reality, the NRDC attempted, in violation of Supreme Court Rules, to file such a brief, containing alleged facts which were not in the record, and to which PLF responded with sworn testimony of Chantelle Sackett showing the NRDC’s claims to be baseless.)
Update: Oops! The Court did allow the NRDC brief on Friday. But this exchange took place during the argument this morning:
MR. STEWART: Well, as we know from documents that have — were not in the record of the case, but have been provided to -
CHIEF JUSTICE ROBERTS: If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record.
One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.
Update 3: Prof. Richard Frank has more here. Meanwhile, undeterred by common sense, the NRDC spins the case as a terrible threat to the environment, complete with falsehoods and mischaracterizations of the facts of the case, and the laughable notion that PLF is “industry funded.” Unsurprising; NRDC has always had only a nodding acquaintance with the truth. Oh, and where does NRDC’s money come from? Perhaps it is just coincidence that NRDC’s received millions in donations from the same EPA that it now portrays as a noble victim. Say what you will about PLF, at least we’re supported by voluntary donations, rather than money seized from taxpayers.