 It's Wednesday. It's July the sixth. It's 11 o'clock. That can mean only one thing. Time for American Issues, Take One. I'm Tim Apachele, your host. And today's title is SCOTUS blocks the EPA to control carbon. With me today is my esteemed guests and co-host Jay Fidel, Winston Welch, and Cynthia Lee Sinclair. Good morning, everyone. I can't wait to talk about the Supreme Court and their decisions on this show and probably for the rest of our lives, because that's how big they are and how they impact our society. Jay, the SCOTUS decision that's basically blocking the EPA's ability to regulate carbon emissions, specifically from power plants in the South. And this was West Virginia versus the EPA. That was the court case name. What does this do, the EPA, and how their ability to enforce the Clean Air Act? You know, here at Think Tech, we've been following the quality of the country. We connected the dots on Donald Trump and felt that during his administration, the executive branch was broken. And then we looked over at Mitch McConnell and realized that since the Senate was stopping everything, with his friend Joe Manchin, that the Senate was broke. And therefore the Congress is broke and still is broke. And what we thought that somehow the country could trundle along even though these two elements were broken. Now we find, I mean, maybe we should have realized it earlier, that the Supreme Court is broke. And that makes three branches of a three branch government are broke. Now, what they did is return to something, oh, gee, in the 19th century, libertarianism kind of thing, a new federalism emulating the old federalism. Those states right. And for that matter, the Congress has to rule on everything the president cannot take executive action directly or through his departments. And therefore, can't get anything done. Because the Congress isn't going to do anything. So this EPA decision goes beyond carbon in some states in the south. It goes to all action by all agencies of the federal government. It says, you know, you can't do these things. You can't make rules. You can't regulate without specific authority from Congress. And as I mentioned, Congress is broke. So what we have now is a complete stoppage of whatever is left of the federal government. President really can't do anything directly or through his agencies. And it will get worse because it reflects an ideology. So this case goes beyond carbon. For that matter, it goes beyond environment. You know, it pulls a tease out of the EPA pulls the EPA apart. It no longer can do what it was structured to do. And I think that's pretty serious, given the fact that we are living in the midst of an existential crisis that is climate change, which is the top priority of everything. We list everything we talk about, you know, environmental issues like climate change are really at the top. And this stops the federal government from doing anything worse. What's slightly worse than that is where the city on the hill, we're the leader of the free rules based liberal order in the world. That's the Marshall plan. And sometimes I think it's like one of those cars where you know, you know about cars, Tim, one of those cars where you turn off the engine and it still goes, you know, and we were hoping that it would still go. Now it's the engine is stopping all together. And people in Europe and Asia, they used to think we cared about the environment, Reddit, Thunberg used to think we cared about the environment. The United Nations and all that. Now it's hard to say we care about the environment. And therefore they will follow us, they will emulate us into nothingness. And if you thought they weren't going to put a lot of money into it, well, I think this confirms that. So bottom line is that at the very top of the priority list, this is a mortal blow. You know, Justice Kagan stated that Congress had already given the EPA more than enough authority to enforce the Clean Air Act. And so Congress knew full well that that's the authority that the EPA had been granted. If you're going to tell me that the court, the decision is not well reasoned, I think we can operate on the assumption sort of a continuing assumption that nothing this court does with its hypermajority is well reasoned. It's all flawed. It's all based on bad facts, bad law, bad outcome. So it's not a surprise to find from Kagan that arguably Congress has already given authority. But this court doesn't care about that. They're into destruction. So are you telling me basically we have a number of justices, maybe three or four, that are making their decisions not based on law, but religious or political bias? Is that what you're trying to imply? Yeah. How can I say it better? You can't. I just said it for you. Yes, you did. Well, that's not good. That's not good. All right. Winston, Jason, throw me a curveball here because he agreed with me. Scares me when he does that. Winston, what is your take on the ability of the EPA to basically enforce the Clean Air Act? And does Justice Kagan have a point that Congress has already decided that that's the authority they have? We're going to talk a little bit later about overreach from some of these government agencies in the last couple years. But right now, it doesn't seem like the EPA does have overreach in this. So your thoughts on this? Well, we've been looking, seeing this trend, it's quite a shocker for this. But if you extend it logically, it goes really into the almost the entire federal structure of executive administration as we understand it. Look at that. He agrees with me, too. We have so far we're doing really well on this show. Agreement doesn't mean that it's a big thing. But I'm looking at, look at the rulings we've had this year. We've had the CDC said, yeah, you can't enforce the moratorium eviction due to COVID. You've had OSHA. It says you can't enforce a vaccine mandate in workplaces. You've had EPA saying you can't carry out some of its mission. The conservatives have been gunning for a lot of these agencies, the Department of Education, right? Or is it Health Education and Welfare? Is it just Department of Education? It was HEW, wasn't it? But now it's just Department of Education. Yeah, because Betsy DeBoss is in the event. I mean, that effectively gutted it as much as they tried there. But here's the courts. This is a different thing. This is not the executive putting in someone like Betsy DeBoss in charge of that. But when we're seeing this theory that's been given the non-delegation doctrine is the outer bounds of this campaign. We're seeing these new legal terms that we really haven't been exposed to before, but we're talking a wholesale change in the way our nation operates. So are they going to then prevent California from establishing its own rules like it has been allowed to do? And it just squeaked by in a ruling last year, or this year when I remember when it came up in the courts. So maybe if there's a, I don't even want to call it a silver lining, but the states, if we're going back to that idea of states' rights, there was a really interesting article in The Times in England called Why America's in Such a Mess, and it talks about how we're devolving a little bit, if I think faster than this fellow, Adam Smith, was proposing, but essentially that the blue states may then turn the states' rights things on their head and say, okay, if you're not going to do it at the federal level, we are going to take it based on your logic, and we're going to enforce these stronger things. But how does that work? Pollution from one state drifts over into the other. So this is a can of worms that's opened up. Where do you even draw the line? There's been so many just really extreme decisions in the last week that it's shaking our understanding of what our federal system is all about. And I think there's just a lot there too much to tackle. Winston, can you help me with something? You mentioned that the Supreme Court is turning it over through the states, and indeed, on Roe v. Wade, that's what they did. At the same time in this EPA case, they turned it over to Congress, which is broke. And so which is it? Is it Congress or is it the states or is it anywhere where nothing will get done? Is it anywhere which somehow feeds the ideology of this court? It's both. It's neither. It's whatever advances their agenda. And in this case, right, the Congress and under that jurisdiction that the Congress cannot delegate to an executive branch to any power. This is ludicrous. I mean, Congress relies on and we have relied on an administrative army to take care of these rules and writing these things. But when you say, suddenly, that's not going to happen in Congress is supposed to somehow do this, when they can barely pass a budget. I don't even want to call it a gridlock. It's a polarization. The other thing that's more scary, I think that is maybe we want to bring up in this show, but maybe it's topic for another time is this idea of the independent state legislature theory, which is another thing I'd never heard of before really. I mean, I added passing in sort of just some rarefied Trumpian arguments. But this is the idea that legislatures have the ability to call elections as they see fit. And this is a really absolutely game changer. If this goes through, and there was an article in. The Supreme Court already decided that judges are not going to render their decisions that would affect that. That was the decision last week. Yes, but there's an article on July 5th, which yesterday by Lawrence Tribe and Dennis Aftergut in the LA Times yesterday, an opinion on this. And it sort of lays it out of what we're really talking about called the Supreme Court is poised to cut the heart out of majority rule. My hope is that and as the fellow and Adam Smith in the Times says that maybe we've reached, I think after this weekend, I don't know, but he likens it to prohibition that the extreme right has overplayed its hand. And we're going to people are going to be really shocked and say, I don't I don't recognize this nation, whether it's right left or center anymore, and they that there will be some desire to get back to that. That said, when you have seven or nine justices that are deciding things, it really doesn't matter maybe what Monpochettle thinks so much because they may just go along with it as the frog in the pot gets warmer and warmer and warmer. Okay. Good points, Winston. Cynthia, this some of the points Winston made leads me to this question for you. You know, this decision by the Supreme Court not only affects the EPA and their ability to implement the Clean Air Act, but reference to was made to the CDC on how it was going to mandate to halt evictions. Isn't that government overreach that wasn't really part of their bailing with that wasn't part of their wheelhouse to halt evictions for the CDC to halt evictions? Wasn't that overreach? And the question is, if it's not overreach, then why did the Supreme Court say the CDC doesn't have the authority to halt evictions? Well, we just discussed why the Supreme Court thinks it's okay to halt whatever it feels like, right? If it doesn't happen to fall within what they like, they can get rid of it. You know, as far as the Supreme Court coming in on legislatures, having power over elections, six states already have that. And there's like eight states that are in process of trying to get it passed in their state Senate. So, you know, granted, we don't want it to be a federal thing like the Supreme Court has already said it's going to do in the next session. But we've already got it happening. We've got to realize this isn't something that might happen in the future. This is something that's already happening. We need to do something about it now. And I have seen, since I got up this morning in the last three hours, I have seen five commercials for that American Edge project. They're talking about how the government's trying to get rid of tech jobs and is cutting American jobs. And it's just a, if you look up the American, you know, Edge project, it's just a far right conservative misinformation type of an ad. So, why are they showing it five times in three hours on MSNBC and CNN? So, these kinds of things are happening regardless of what the Supreme Court does. There's a couple things I think that are important in regards to the Supreme Court that we're talking about here. And maybe some people aren't quite aware of what's going on, right? The Supreme Court said there was no congressional authority for the EPA to make up its own rules. So, in 2015, it came up with two rules that were going to curb the coal fire plants, specifically, established ones were the 111D and the new plants were going to be 111B. And all of these rules are coming out of that section. That is the section that Congress, that's where Congress gave power to the EPA to do these things, right? And they're saying no, they can't. So, they're saying that the Supreme Court was saying the question before the court, right, is whether this broader conception of EPA's authority is within the power granted to it by the Clean Air Act, where it absolutely was section 111. So, these two new rules are specifically trying to address carbon dioxide pollution from these power plants. Now, this is what the Supreme Court comes back with. They said that carbon dioxide is not subject to those same rules because it has not been listed as a toxic pollutant. Carbon dioxide is not- Oh, this is on the same path as privacy was not listed in the 14th Amendment. Thank you. That's right where I was going with that. Yeah. So, every premise that the Supreme Court is standing on is completely false. So, where is America's way to come back at that? How do we answer those kinds of gross misrepresentation of the Supreme Court's power? So, yeah, maybe the government and the CDC overreached a little bit with that whole thing. The whole COVID thing makes that a little bit sketchy to try to define. But this one, there's no doubt. This is beyond perverting the powers of the Supreme Court. And I don't know where our comeback is for that. And that scares me. I think you raised a great point. There's a lot of things that progressed in the United States for 240 years that are not specifically addressed in the Constitution or the Bill of Rights. 240 years of progress may not be written down in black and white. And if you have a Supreme Court or at least a few justices, that's what they're looking for to enforce their rulings. This is childish. It's beyond childish. Hey, Jay, thank you, Cynthia. JTU, on the world stage, was this due to Joe Biden's promise to reduce carbon emissions by 50% by 2050? How does this... Well, obviously, it doesn't help his credibility. But how does he deal with that on the world stage? I wanted to address one thing before I get to that, Tim. And that's the Adam Smith's suggestion that this is something like prohibition for Winston's thought. Prohibition lasted for 10 years, roughly. And the country realized that it was damaging and silly and wasteful. And it generated the mobs is what it did. It had all kinds of bad effect. And I guess people got the idea there was a change in the political direction of the country. We were in a depression already by the time it was repealed. And so there were factors that played in causing the repeal. But I don't see an easy comparison between prohibition and the solution to this problem. I may sound negative and pessimistic about it, but I think all three branches of government are broken. If we're looking today at the Supreme Court, it's going to be broken for a while. There's a supermajority that's a super right wing. And they don't mind making decisions that are not based on the facts or the law to win all the factual mistakes they made in the Seattle Football Coach case. It's been the subject of great criticism over the past few days. I mean, I think they're hopeless. They're gone. And forget about them coming back like prohibition. They're not going to come back. So we have to look, I'm sorry to say all you guys, we have to look at the worst side of things because the country is in a major decline. And really the question on that is where are we going from here? It is not a good place. And to answer your question about the global effect of this, I mentioned earlier that I think many things that have happened in this country, the three branches of government now clearly broken are a huge message to the world that we have lost it. And of course, if the conservatives get in next time, next November and again in 2024, that will confirm the message. And it will make it clear that we're not going to support them in Europe. We're not going to be able to do anything because we can't get the government together. And even if we have a moment of clarity, it changes. It's an indictment of democracy. And Xi Jinping can say, look, look at those guys, they're a bunch of clowns. They can't get it together on any level, including the military level, I'm sorry. And so the answer is people have followed us many countries, United Nations, good part of those 190 countries have followed us about a climate change. Why should they now? We can't do it. And this is an indication of temperature, if you will, in the middle of a hot summer with heat waves and forest fires and floods and all kind of indicia that we are suffering more every day from climate change, the Supreme Court cuts off climate change at the ankles. So how can another country say, oh, the United States is the leader in dealing with climate change? We are not. And we're not going to be for a while, maybe longer than prohibition. Okay, to that point, Jay, Donald Trump took us away from climate change on the world stage. And the rest of the world said, fine. They're vacant. They're not here. They're not participating. We'll go it alone. Now that the EPA doesn't have the ability to reduce carbon emissions from coal plants, which is a major source of our emissions, does the world continue to say, well, it's like Donald Trump is back at the helm. So let's keep going it alone without the United States. Is that what's going to happen? Or do they say, let's work with President Biden and see if he can do a workaround, do some kind of trick of the administration or executive order? Which way do you think Europe and the rest of the world will go with this? They're going to give up on us. With Trump, he did everything he could to undermine efforts of climate change. And he had the Senate under McConnell and Joe Manchin to help him. And so two branches of government were pulling the rug out on efforts of climate change. So then Joe Biden gets to be president. He tries really hard. He tries to bring Europe together, to bring the United Nations together to get it going again. And to some extent he succeeds. But the undermining feature is that every one of the world knows our government turns over or should turn over every couple of years, every four years anyway. So now the Supreme Court has dealt the executive, EPA is part of the executive, right? Then the executive immoral blow because now the Congress isn't going to do anything. A Republican president won't do anything. Joe Biden, the one glimmer of light who understands climate change wants to do stuff, he's been cut off at the ankles because his agencies can't perform. Not only EPA, but so many other things. They've telegraphed exactly what they're going to do. They don't care about it. They don't believe in it. There are a lot of people in this country don't believe in climate change right now today. So what I'm telling you is that if I'm in Europe or for that matter, I'm in Asia, I say the United States is finished on this leadership in climate change. Why should we do anything? They won't. They won't fund it and we're all cooked. Okay. What was your comment, Winston? Something about the steam and the pot and the frog? We're cooked. Cooking. Well, yeah, but I don't honestly, just between us girls, I don't think we can come back. I think we're over the Rubicon. Okay. Winston, we have a few minutes left, actually less than that. And so the question is, industry is doing things without regular regulatory incentives or action. I'm thinking of the auto industry right now where they've always been resistant to CAFTA standards and mileage to the gallon of gas. And they've fought that tooth and nail, but now they want to continue it. They want to actually have higher numbers of miles to gasoline than never before. So they didn't want to gut the CAFTA standards. So goes the production of electric vehicles. They don't want to go back. That's a new wave now. Will we see other industries do the same where, regardless of what the Supreme Court says or the Congress, that they're going to take the lead and actually serve the population on the advances of non-producing industries? Is that a possibility? Absolutely. And it's going to be driven by economics at the end of the day, that as these alternative energy sources become cheaper and more reliable, you're already looking at essentially Hawaii is going to become carbon neutral in just a few years. Now, how we're going to do that, we're still trying to figure out. But essentially, these technologies involving waves every year, they're just getting more and more efficient. So it's going to be, at some point, more expensive to burn things, but we're not there yet. And I don't think anybody cares about what Greta has to say, except Greta's age, but they're mad at us, and rightly so. But that's not the driving force. It's not the moral force is, oh, how about climate change? They're not really worried about that. You might feel it like it's super hot this summer or we had 59 inches of rain in Sydney in a day, those sorts of things. And people know that there's climate change, but they just don't want to look at it. It's just like when you figure out there's not a Santa Claus. Your world is kind of destroyed for a while. But I'm more concerned with where our nation is heading, not exactly in the EPA, but as a whole of how, and I saw this in opinion after opinion about celebrating July 4th. And our nation's basic structure of who we are and what we stand for is really just right in front of us. And Jay thinks we're over the Rubicon. I'm not sure that we are yet, but we're definitely in a place where we're seeing a lot of very different vistas. We don't know how that's going to look, but if I could predict something for the next while, I don't see this changing, but maybe we'll pull back from the precipice as we pursue some sort of more extreme federalism in maybe along the line of the baby bells and how they were broken up as Western bell and mountain bell and that sort of thing. That would be my guess, but we're really going to have to have a lot of aloha for our fellow Americans as we traverse this. That's the route that we're going to go in. We may not have a choice in how we go with this because the levers of power are that way right now, but that prohibition example I think is illustrated as as big tech comes in and says, okay, you can't leave Texas as a pregnant woman. And that's that sort of law comes up in the future as it very well may in some state or maybe Alabama or Tennessee or whatever. And people are like, wait a minute, I want to see my daughter. She can't leave the state now because she's pregnant and they're worried about, you know, she's those sorts of things are going to come. And there's a good article as lead with this is a Washington Post had an opinion by fetishizing the founding fathers. And it was, oh, he was Clinton's secretary of, I want to say Ruben, but he talks about that they weren't perfect people. This is not a gospel truth that the document that they gave us was the best one that we could have. And now we we're mending over time. And you know, women weren't mentioned in it and voting rights and black property and all of that. So it's it's a more perfect union that we're going towards. But our more perfect union may not look like the union that we imagined a week ago or two weeks ago. And we're kind of going to have to just fasten our seat belts. I think we're in for a little bit of a bumpy ride here. All right, Cynthia, we're out of time, but I want to get your last thoughts. And I'm going to shift a little bit here. What's the next Supreme Court decision? What's it going to be? And what do they want to gut? Is it gay marriage? What is it? They've already told us the next one they're going to take up is the voting thing. They're going to give the election powers to the legislatures on a federal level, instead of just the individual states coming forward with it. So I want to still talk a little bit more about this whole EPA thing, because I want everyone to realize who brought this suit? West Virginia. We all know who that is, right? This is important. Since he's the one who brought it. This senator that has been the stopping block for every single thing that the Democrats want to get done that will help Americans in profound ways. And it doesn't hurt them in any way. Nobody talks about the fact. Well, wait a minute. Wait a minute, Cynthia. If they ban carbon emissions from coal, everyone in West Virginia, a lot of people are going to be affected by that. That's why Hillary Clinton did not win West Virginia. But they weren't. They weren't banning them. Under rule 111, there was two different sections. There was one for the ones that were new plants being constructed. Those have higher levels of regulation. And it's a stepping process. They didn't expect them to just suddenly stop and then put all these people out of work. Just the opposite. Within the rule, it's written that it's a step process. And as they reduce their level of carbon dioxide exhaust, they have to replace that same amount of energy with some sort of renewable energy. It be wind or solar or whatever. That's what they want. It wasn't just like a slash. You're gone. But that's what the hard time reading through the whole court's decision, because some of it's a little over my head. And I know some of the things that they cite as precedent don't make sense to me with no time to look them all up. But they're saying that that's one of the main reasons that they've decided to gut the EPA is because it's going to immediately make a bunch of people out of work in West Virginia. Well, that's not exactly true. So there you go. Another falsehood in this decision that's been made. And I think the fact that it was West Virginia and Joe Manchin that brought this whole thing about, but it started in 2019, actually, under count. We're not going to be able to probably have time to go through that history, Cynthia. I'm sorry. We are out of time. Hey, Jay, your last thoughts and word, please. We've been talking about making a perfect, more perfect union. And I would say in our lifetimes, all of us, the union has gotten less perfect and not more perfect. And furthermore, there are people who want to make it less perfect. And as I said, we're on a decline. The only hope I would hold though, and this goes back again, to the comparison with prohibition, is we're shooting ourselves in the foot. The people in West Virginia are going to find there is no social safety net. At the end of the day, there are no jobs. There's no welfare. There's nobody to protect them or provide healthcare. And all of these things are going to be withdrawn. In addition to our civil rights, watch out for that. You ask what's coming down the pike. I think what's coming down the pike of the conservatives have their way is freedom of the press. Enjoy that risk. That is very scary. But the one hope I would have is that if people look down and find out that their feet are bleeding, they're going to realize that they've been shooting themselves in the foot. And hopefully that word will become clear. And maybe we'll have a reversal like we did in prohibition, but it has to happen soon. And there is a possibility logically that it will happen. The problem is that right now we are in chaos. So it's hard for people to make a clear choice. Thank you, Jay. Yeah, it took 10 years for us to realize that prohibition was really a bad, bad idea. So good points. Winston, your last thought. Okay, health education and welfare was 1953. Eisenhower was president. That's when it started. Department of Education gets spun off in 79. And then the other half got health and human services. So we were dating ourselves a little bit there. EPA, who starts the EPA? Richard Nixon, Republican, right? Dwight Eisenhower, Republican. We're talking these were universally acclaimed Republican, Democratic, American initiatives. I'm going to differ a little bit with Jay on this. I think that the last 50, 60 years has seen enormous advances in a more perfect union for many, many groups of people. What we're looking at now, though, is the reversal of that. And that's where people are realizing, whoa, that never even understood a different time when things were different. And they are different and they were different. And they're going to be different if we don't step up and say, nope, we're not backsliding in those ways. And some of these things might go by the wayside, like the EPA and it goes down to the states. But hopefully, our civil rights, our freedom of the presses, our basic rights, these will be universal, universally acclaimed and upheld. But we're just in for a lot of great time to be a lawyer. You're not going to be out of work. Not so great if you're in the right time. Got to be enough time on the court docket to take all these cases because they're coming. Thank you, Winston. Cynthia, did you find what you needed to find? I did find what I needed to find. And I've got to say, I used to think that Mitch McConnell was the most dangerous man in America. But I've decided after reading all of this and looking into some of this, that it's really Joe Manchin. He is absolutely as, I don't even know what to call him, as dorky as he is. And I need a better word. He is the most dangerous man in America right now. And it's just terrifying to me. Okay, so what I want to close with is what Justice Kagan wrote in her dissent. Section 111, this is what I was talking about earlier, in trust's important matters to EPA in the expectation that the agency will use that authority to combat pollution, and that courts will not interfere. Thank you. That's it for our show. I'd like to thank Jay Fiedel, Winston Welch, Cynthia Lees and Claire. Join us next Wednesday, 11 o'clock for American Issues Take One. And also join us tomorrow for American Issues Take Two, Thursday at 11 o'clock. I'm Tim Appichell, your host. We hope to see you then. Aloha. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at ThinkTechHawaii.com. Mahalo.