Copy of AFF Sentinel V21 #47-Reality Bites Environmental Activists Everywhere
- Steve Dittmer
- Jul 22
- 4 min read
“Ultra vires” Is Now Our Favorite Bit of Latin
Steve Dittmer | AFF Sentinel
Colorado Springs, CO
Originally sent to subscribers 11/15/24
The environmental activists -- or envirozealots as we call them -- are having a difficult month.
First, their presidential candidate lost on Nov. 5.
Then, the German coalition government collapsed because on Nov. 6, they realized they would have to begin counting the costs of their climate change expenses on the books, instead of off to the side, as they have been doing.
Then, Thursday night came the ruling by the Court of Appeals in D.C. that the “regulations” the Council on Environmental Quality (CPQ) has been issuing for the last 40 years are not binding regulations at all but can only be regarded as “guidance.”
That last will likely be appealed or the government will request an en banc hearing and maybe the case will end up at SCOTUS. But no matter what, there will be quite a period of uncertainty.
And yes, Lee Zeldin, President-elect’s pick to run the EPA, is a legal beagle.
Germany has been one of the countries leading the climate change “transition.” That’s why they have been desperate for natural gas (Russia and Ukraine complications), their electricity bills have driven much manufacturing out of the country, burdened the citizenry and they’ve been shutting down coal and nuclear plants.
The day after our election, the coalition that had been ruling Germany since late 2021 collapsed in a fight over climate change spending. It seems the country’s highest constitutional court had ruled a year ago that climate change spending had to be spent out of the regular budget, not off-the-balance sheet like the coalition had intended.
The three-way coalition consisted of the Social Democratic Party, with a labor union wing and an upper income urban wing; the Green Party, with an obvious purpose and the Free Democratic Party, a free market party sympathetic to climate change but wary of the costs of paying for net zero and damaging businesses, (“Germany Gets Mugged by Climate Reality,” Wall Street Journal, 11/15/24).
Somehow, the parties thought they could get away with concealing the costs off-budget and avoiding uncomfortable cost/benefit discussions.
Then an already difficult energy situation blew up when Putin invaded Ukraine -- Europe had been getting lots of cheap natural gas through Putin’s pipeline -- and defense budgets had to be bolstered to counter Putin’s threat. The energy costs cratered manufacturing activity and employment.
Recently, Prime Minister Scholz’ Finance Minister Christian Lindner put out a white paper detailing the situation and said the meager benefits of net zero were not worth the cost. Germany should abandon net zero and adopt pro-growth policy.
The resulting explosion caused Scholz to fire Lindner and call for early elections in February, as the coalition had no suitable answers and could not resolve their differences. The cat was out of the bag.
The American taxpayers had already arrived before Nov. 5th at the conclusion that Germany is now facing. The religion of climate change may be powerful to some but in the cold light of day, its costs must be realistically faced, its potential for real benefit is nebulous and budgets have to -- eventually -- be balanced.
Sometimes, the best news comes out of the blue, literally, in this case
The Marin Audubon Society had sued the FAA and the National Park Service for allowing tourist planes to fly over national parks near San Francisco without proper environmental review under the CEQ National Environmental Policy Act (NEPA).
Nobody had asked but the court judge panel (voting 2-1) found that the CEQ’s regulations were “ultra vires” or beyond the CEQ’s legal authority. It seems that the CEQ’s “claimed rulemaking authority” was assumed from a long-ago executive order that did not in fact provide it with “lawful authority to promulgate these regulations,” (“D.C. Circuit Throws Out Over 40 Years of NEPA Regulation,” National Law Review, 11/14/24, www.natlawreview.com )
It is another case of a bureaucracy claiming it had authority when it didn’t and hoping no one would notice. And they didn’t for 40 years.
Other federal agencies may adopt regulations under NEPA but someone’s going to have to go through each regulation to see if it complies with NEPA outside of the CEQ “regulation.” It’s really more complicated than that but the implications could be enormous.
Either party may seek a stay, the government may request an en banc hearing within 45 days or the case could be appealed to the Supreme Court within 90 days, seeking certiorari.
Oh, in case this doesn’t supply enough uncertainty, SCOTUS may clear up or complicate things. They are going to hear a NEPA case involving Colorado’s Eagle County in December.
If only Nixon had kept the government out of the climate business it would be so simple and cheaper to run the government -- and our lives.
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