> Inhance challenged the EPA’s action, arguing that the EPA improperly sought to take action against the company under a section of TSCA dealing with new uses of chemicals, and that Inhance’s process did not constitute a new use.
We need legislation to ban these chemicals outright so that companies can't pull out these kinds of arguments to keep poisoning our food and the environment.
To be fair what kind of judge in their right mind will be accepting this legislation on a technical legal issue; when the outcome and intent are identical and this will just create a waste of time and money on all parties involved?
Any of them? The entire body of the law is based on legal technicalities. Judges don't get to decide "what they really meant it to say" when applying the law.
Yeah, but you can't ignore the letter of the law to pursue it's spirit. There are precedents supporting that so that laws don't violate strict construction and lenity. That's doesn't mean it doesn't happen - I've seen laws that explicitly call out "reasonable" in them and the courts decide to apply strict liability instead of a reasonable standard, just to make their job easier (increase convictions).
I was in court on a giant mixed docket with name changes to murder indictments. One of the cases was a paternity action involving the state’s new paternity statute.
There was argument over how to interpret the statute and one of the attorneys tried buffaloing the judge with “Well actually judge, I’m on the committee that drafted the bill and our intent,” The judge cut him off and retorted that he didn’t care what anyone intended, he was going to go by what the statute actually said.
I made a mental note to never argue legislative intent in that court.
Except it literally is - both the letter of the law, and the spirit of the law are equally important under the American (and English!) legal systems and most interesting precedent is due to ‘edge cases’.
It’s impossible to write any law which covers every scenario and is not either overbroad (penalizes actually desirable or ‘ok’ behavior in some cases), not being possible to get around for bad behavior, or so vague it heavily restricts desired behavior.
Hell, look at the legal battles and drama around murder trials or corporate malfeasance for clear examples. And those are the ones where the bad actors were so clearly being bad that professionals felt they could nail them to the wall in court.
Also, as the old saw goes - ‘if the letter of the law is not in your favor, argue the intent.
If the intent of the law is not in your favor, argue the facts.
If neither the letter nor the intent of the law is in your favor, pound the table.’
Carl Sandburg perhaps?
For example - did someone commit first degree murder or something else (manslaughter, second degree murder?), if they intentionally laid in wait and shot someone they thought was person A - but it was actually person B, who looked similar but they actually didn’t know at all.
After all, they didn’t intentionally commit premeditated murder against person B did they? But they did definitely premeditate something that became a murder!
So was this negligent homicide in fact (they accidentally killed simeone who wasn’t their target due to negligent behavior), or first degree murder (intent) because they intentionally murdered a human being with premeditation - though it was actually an accident they killed that particular human being, and they had no premeditation or intent to kill that particular human?
There was a post with very good “let’s see what the law actually says…” analysis in the last thread we had.
TL;DR there’s definitely room to dispute whether this decision was merely “calling balls and strikes” based on the meaning of the law or kinda a damn stretch.
> To be fair what kind of judge in their right mind will be accepting this legislation on a technical legal issue;
A good judge who recognizes their intended role in the system. They are there to interpret the law and apply them, not to create them.
That sometimes leads to situations like this where the outcome is silly, but that's the fault of the system, not the judge.
If we decide it's worth letting unelected and mostly unaccountable dictators write laws, then we could fix this particular problem. IMHO it's not worth it
This exactly, the 5th has the wildest and most twisted rulings to the point even the current Supreme Court has slapped a few down. Any reasonable person should be skeptical.
Well judging how bad a court is by how many times this Supreme Court reverses it isn’t the best metric, that would require the SC to be a fair and reasonable actor
Sorry for the confusion there, but I bought that up as a point that their rulings have been so bad that even the current, extremely partial SC, has been forced by the politics of the situation to slap down their rulings. It’s as if your own friends tell you you’ve gone a bit too far.
This notion of devaluing the judiciary just because they don't judge the way you want is precisely how rule of law is eroded and societies eventually wither and die.
If you bothered to read the ruling, you would learn that the EPA specifically exempted ongoing processes as of and after 2015 under Section 5. This obviously exempts Inhance's fluorination process and is in line with Section 5's wording.
You would also learn that the EPA did not include fluorination among its list of things to regulate.
The EPA then cited those regulations under Section 5 to order Inhance to stop their decades-old fluorination process.
That is simply bullshit, that is pulling regulations out of thin air. Note that the court explicitly cites Section 6 is what the EPA should use to regulate PFOA, which the court explicitly says is by itself not wrong.
Any reasonable person should read the ruling and most likely be applauding the court for bringing a misguided executive agency into line, because the United States of America is a country governed by rule of law and the EPA in this instance did not follow due process.
No, devaluing the 5th because they regularly have completely insane takes is logical. They regularly twist legal frameworks for completely out of pocket takes. Criticizing government actors instead of blindly trusting every ruling without reading it is how democracy functions and grows. If you’re so upset over that, you probably need to re evaluate if you should live in a country where citizens get to distrust their government. That’s exactly the foundation of this one.
>Criticizing government actors instead of blindly trusting every ruling without reading it is how democracy functions and grows.
I did read the ruling[1], and unless the ruling is straight up perjury the EPA dropped the ball.
Criticizing the court for not ruling the way you wanted, and presumably without reading the ruling because you're grossly disregarding their value, is unreasonable and erodes rule of law.
Yes, the ruling is straight up judicial perjury. It deliberately misstates the statutory language to create a regulatory conflict where non exists.
Indeed, the court is taking a non-binding FAQ on the EPA website, and treating that as more legally constraining on the EPA than the actual regulations they issue. That's f'ing ridiculous.
And to make things more ridiculous, they created a binding implication, where non actually existed in the proposed language that the 2015 exemption would not apply to ongoing uses.
The EPA themselves defined "new use" with regards to PFAS as any manufacturing or process not ongoing as of and after 2015, as cited in the ruling:
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
So not only are the EPA aware of what Section 5's "new use" language means and tried to twist it during enforcement, they ignored their own very specific definition to try and regulate Inhance.
That is what the courts are telling to EPA to stop doing. The courts are ordering the EPA to cite the appropriate law and write appropriate regulations following due process first, otherwise known as Section 6, in order to regulate Inhance and their fluorination process which the court reaffirms is something the EPA can do.
>This notion of devaluing the judiciary just because they don't judge the way you want is precisely how rule of law is eroded and societies eventually wither and die.
That's not what anyone said though. There's a difference between disagreeing and being unreasonable. Here, you too are being unreasonable because you've purposefully skipped past this in order to twist this even more politically.
You responded to a specific post about a specific thing with a made-up thing, that wasn't what was being discussed. That's why you are unreasonable. Here now, again, you are doing it by twisting your post to now be about everything else, except the actual post you responded to, which had a pretty specific and reasonable criticism of the 5th circuit. This most recent post by you screams of projection, where you instead just insist the 5th circuit is "reasonable" just because you don't like why people disagree with them. Apparently the irony of this is beyond you.
>you instead just insist the 5th circuit is "reasonable" just because you don't like why people disagree with them.
No, I find the court's ruling here reasonable because I read through the ruling and the included timeline of events and found their conclusion makes sense. That is quite different from handwaving away their authority because you just don't like their rulings.
You could also read the ruling like I did and try arguing what about it is "wild" and "twisted" as the comment I replied to put it, an unreasonable sentiment also shared by most of the people in this thread.
For starters, do most of the people here realize the court affirms the EPA's right to regulate PFOA and does not find fault with the core reasoning itself? If this court is "wild" and "twisted", is it "wild" and "twisted" for the EPA to regulate PFOA properly under Section 6?
> No, I find the court's ruling here reasonable because I read through the ruling and the included timeline of events and found their conclusion makes sense. That is quite different from handwaving away their authority because you just don't like their rulings.
But the post was about the 5th Circuit in general, which has come out with a number of incredibly unreasonable rulings. That was the criticism, that the 5th Circuit shouldn't inherently be trusted as reasonable just because.
>You could also read the ruling like I did and try arguing what about it is "wild" and "twisted" as the comment I replied to put it, an unreasonable sentiment also shared by most of the people in this thread.
I feel like you haven't been engaging with what I actually wrote with if you keep arguing this.
>that the 5th Circuit shouldn't inherently be trusted as reasonable just because.
Yes, and that goes both ways.
I read the ruling and found its conclusion reasonable, thus the court insofar as this case is reasonable. If you or anyone else thinks the court is unreasonable with their ruling here, please read the ruling and make your case like I have. What part is "wild" and "twisted"?
>I feel like you haven't been engaging with what I actually wrote with if you keep arguing this.
What part of "I read the ruling and found it reasonable." do you not understand? What part of "I find shooting the messenger unreasonable." do you not understand? What part of "Denying the judiciary just because you don't like them is an attack on rule of law." do you not understand?
>I read the ruling and found its conclusion reasonable, thus the court insofar as this case is reasonable. If you or anyone else thinks the court is unreasonable with their ruling here, please read the ruling and make your case like I have. What part is "wild" and "twisted"?
As I have several times pointed out to you, the thread you responded to wasn't discussing the reasonability of this ruling, but the reasonability of the 5th Circuit in general, to which it has also been pointed out to you, has had a number of its more extreme decisions overruled by the current supreme court.
>What part of "I read the ruling and found it reasonable." do you not understand? What part of "I find shooting the messenger unreasonable." do you not understand? What part of "Denying the judiciary just because you don't like them is an attack on rule of law." do you not understand?
There's no part of that which I don't understand, and it's an odd response to insist I'm not understanding your posts, which I very clearly do and have repeatedly pointed out as pertaining to a different issue than what was being discussed, by asking if I understood that you think the court is reasonable. Yes, we get that you think the court is reasonable here. Try reading my posts again. Or, don't. Either way, no need to be angry.
You're still not understanding me, so let me rephrase:
What is the point of referring to other cases, which may or may not be unreasonable, and using them to throw out the court's authority? Without even reading their ruling, for that matter. Or worse, for no reason other than you don't like their ruling?
The answer is there is no point, at least not any that is productive. All you achieve is the spreading of doubt and uncertainty about the judiciary and thus the laws governing the land. It's an attack on the rule of law, and the only logical conclusion if this is kept up is anarchy. I find this ironic, actually; because these people presumably want to protect the rule of law, but they are achieving the exact opposite.
Read the ruling and make your case. Otherwise there can't be any useful conversations.
>What is the point of referring to other cases, which may or may not be unreasonable, and using them to throw out the court's authority? Without even reading their ruling, for that matter. Or worse, for no reason other than you don't like their ruling?
Because the discussion was about the quality of the Court's opinions in general. I'm not sure what is so difficult about that for you to grasp.
>The answer is there is no point, at least not any that is productive.
We are just people sharing opinions on HN, I'm not sure where you got the impression that your posts were productive, or any of the posts here are productive, nor by what means you seem to have used to come to such a conclusion.
>Read the ruling and make your case. Otherwise there can't be any useful conversations.
Once again, you are being unreasonable. It's completely valid to talk about the general quality of decisions made by a circuit court. I'm not sure how you came to the conclusion that such a thing cannot be discussed "productively" And it seems you are basing your opinion here on the fact that wait for it others disagree with you!
>The answer is there is no point, at least not any that is productive. All you achieve is the spreading of doubt and uncertainty about the judiciary and thus the laws governing the land.
The legitimacy of any court is based on, in part, how it is received by the public. That's the nature of government and law. I'm really not sure how you came to the conclusion that courts cannot be criticized, but it's flat-out asinine. The 5th Circuit has done its own work to spread doubt and uncertainty regarding the quality of its rulings, and that is absolutely not the fault of anyone pointing out the deficient quality of a number of its recent rulings. To suggest otherwise seems more than stifling.
>Because the discussion was about the quality of the Court's opinions in general. I'm not sure what is so difficult about that for you to grasp.
Because the discussion is about the ruling on this case by the court. Discrediting the court because of dogma is utterly pointless.
>Once again, you are being unreasonable. It's completely valid to talk about the general quality of decisions made by a circuit court. I'm not sure how you came to the conclusion that such a thing cannot be discussed "productively" And it seems you are basing your opinion here on the fact that wait for it others disagree with you!
It's one thing to read the ruling and poignantly point out flaws so they can be criticized in ways that are useful. Constructive criticism, as it's often called. Criticizing the judiciary in itself is fine and certainly encouraged. In fact, this is fundamental to the concept of appealing to higher courts.
What's not fine is criticizing the courts solely because you don't like how they ruled. You didn't even read their ruling. You're just trying to discredit an entire foundational institution because they didn't act in your favor. That is nonsense and an affront to rule of law and a functioning society.
>The legitimacy of any court is based on, in part, how it is received by the public. That's the nature of government and law. I'm really not sure how you came to the conclusion that courts cannot be criticized, but it's flat-out asinine.
See prior point.
>The 5th Circuit has done its own work to spread doubt and uncertainty regarding the quality of its rulings, and that is absolutely not the fault of anyone pointing out the deficient quality of a number of its recent rulings. To suggest otherwise seems more than stifling.
If we're going to discuss the ruling of a court, it is a requirement that we read the ruling and consider the points made. That is not happening here, and I am going to call that bullshit out.
>Because the discussion is about the ruling on this case by the court. Discrediting the court because of dogma is utterly pointless.
No, the post you replied to was about the 5th Circuit in general.
>What's not fine is criticizing the courts solely because you don't like how they ruled. You didn't even read their ruling. You're just trying to discredit an entire foundational institution because they didn't act in your favor. That is nonsense and an affront to rule of law and a functioning society.
Once again, not what anyone was doing. It is what you are doing about other people's criticism.
>If we're going to discuss the ruling of a court, it is a requirement that we read the ruling and consider the points made. That is not happening here, and I am going to call that bullshit out.
We were discussing the 5th Circuit's rulings in general. I'm not going to belabor this, you can make up whatever you want to justify your posts, that's your choice.
>No, the post you replied to was about the 5th Circuit in general.
Which was in reply to another post about the 5th circuit, which was in reply to my post about the ruling on this case, which was in reply to a post about the need for regulations to ban chemicals, which was in reply to the linked article about the 5th circuit's ruling on this case.
This whole thread is about the ruling on this case.
>Once again, not what anyone was doing. It is what you are doing about other people's criticism.
Literally what the post I replied to was doing, calling the court "wild" and "twisted".
Incidentally, nobody including you has mentioned what about this ruling is "wild" and "twisted" yet despite numerous requests to do so. Are you aware how discussions on a subject matter are conducted?
>We were discussing the 5th Circuit's rulings in general. I'm not going to belabor this, you can make up whatever you want to justify your posts, that's your choice.
See first point. If you want to talk about the 5th circuit in general, make your own thread. This thread is about the 5th circuit's ruling on the case between EPA and Inhance.
>This whole thread is about the ruling on this case.
So you are saying no one can discuss the 5th circuit in general in response to one of its rulings? One might even say "this ruling is reasonable, but that court sure hasn't been lately" and you'd still say the same. Get a grip!
>Incidentally, nobody including you has mentioned what about this ruling is "wild" and "twisted" yet despite numerous requests to do so. Are you aware how discussions on a subject matter are conducted?
I never said any of those things. You are really picking the wrong bone with me.
> Most of the people here are white knighting for the EPA, throwing down the courts, villifying corporations, and it's fairly clear they haven't actually read the ruling either.
Why do you think you can brazenly lie to people like this? It's not going to work and it's not acceptable.
I think we should ban PFAS. But it’s important to understand that Inhance is also relying on a rule that was deliberately incorporated into the law we have, decades ago, for good reasons.
The law makes a distinction between new uses, which require certain notice to the EPA, and existing uses. The idea is that the EPA can be more aggressive with a new thing that isn’t being used yet, than an existing thing that people are relying on. That balance was written into the law.
The environmental laws are full of these frameworks that force the EPA to make different trade offs. They’re not loopholes for industry, they’re the reality of balancing costs and benefits in a country where voters will throw you out of office if gas goes above $4/gallon. You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
Can the government also pursue Inhance for the cost of damages incurred by the continued use of PFAS based on new science? Or do we all have to collectively eat the cost of harm because of the “it’s not fair to Inhance to immediately ban it” legal process? Certainly, the EPA should have to work its process from a due process perspective, but private industry should not be permitted to harm based on new science without a cost burden. Make them put a bond up, calculated by the estimated cost of the harm burden between now and when a final decision is made.
> Can the government also pursue Inhance for the cost of damages incurred by the continued use of PFAS based on new science?
That's up to a judge, and if necessary, the supreme court.
Lotta people don't give enough credit to a system that has been around longer than most others in the world. There's a reason why everyone bets on the USA, there are contingencies for contingencies for contingencies. If it's important enough it will get done.
On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
The Supreme Court is clearly unhinged and monstrously outdated. Checks and balances? Lol.
And the fish rots from the head. The abuses of lower courts and basically every regulatory body are well documented, and the accountability for corrupt judges is near-zero. Any institution which actually functions to protect people gets defunded.
> There's a reason why everyone bets on the USA
Because a dying empire is liable to do just about anything to get what it wants. Genocide, mass murder, arming your enemies, blackmail on a global scale, sanctions that murder millions, wrecking the climate, criminalizing abortion - nothing is off the table.
Among many other reasons, that's why the world has viewed America as the number 1 threat to democracy, world peace, and stability every single year since 2003. "Everyone bets on the USA" to fuck shit up. That's not an exaggeration, though American's never believe it. It's not close either. We're number 1.
Very few people trust American regulation; whether on food, chemicals, privacy or anything else. We are a global laughing stock; a stark example of why unregulated capitalism is so dangerous.
There's a reason why America's water quality is among the worst in the developed world. There's a reason why we're mocked world-wide. There's a reason why our Presidential 'options' are the two most unpopular politicians in the country for three elections running, and it's not cause our system is working so well.
> On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
That's a silly strawman. In that case you'd sue for inappropriate regulation and win, just like this case, but better because you'd be right. The EPA's charter doesn't allow for political fundraising, it would be a trivial case to win.
The complaint here isn't that courts shouldn't have the ability to oversee government agencies to make sure they're doing it right. The complaint here is that the fifth circuit is deliberately interfering with the operation of a government agency doing what it is supposed to do.
Inhance's yearly revenue is $31M, at least from what I can find.
Even if the government goes after them, they'll be worthless. They specialize in fluoridated products, I bet PFAS is most of what they make. So the stock will be worthless.
Their physical holdings are likely to be... Primarily fluoridating equipment, which won't be worth much if we're banning those processes anyways.
There won't be anything worth anything to seize, it'll be the government's mess to clean up.
> On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
That company would presumably sue under the argument that the EPA is only authorized to regulate chemicals harmful to the environment? It is a dramatically easier solution than "have Congress deal with it", which historically has meant "do nothing about it".
Also, your "solution" just pushes that problem up a tier. What if Congress decides to target a political party? That one is much harder to fight in court too.
Let me make sure I understand this correctly, because you're saying this is a good thing, and I'm thinking we need to track down whoever wrote this regulation and put them in an assisted living facility because I don't think they should be trusted to dress themselves.
The EPA has wide unilateral authority to ban new uses, for which we have little to no usage data for. But if we start executing those uses and get actual usage data that a substance is harmful, the EPA is toothless?
And that's a good thing why exactly?
> You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Yet we do, they apparently can only do it based on wild guesses though. Data and informed decisions be damned; well just let them keep making PFAS, and have the citizens pay for the externalities through health insurance premiums, the true blue American way.
> Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
Quick, someone tell the tobacco lobby, they're gonna love this! Something something long standing usage something something loss of jobs something something market cap something something, you can't regulate cigarettes!
I don't think the parent comment said that. They just said that the rules were set this way deliberately, and that it's not just a loophole, which is an interesting and informative thing to point out.
I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
> But it’s important to understand that Inhance is also relying on a rule that was deliberately incorporated into the law we have, decades ago, for good reasons.
It's like right at the top of that post. And
> But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
At the bottom. It's capped on both ends with calling it a good thing.
> I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
Sure, but questions about whether the rule is deliberate or not are answering "how", not "why". In fact, it's mostly trying to distract from the "why" to answer "how".
> The EPA has wide unilateral authority to ban new uses, for which we have little to no usage data for. But if we start executing those uses and get actual usage data that a substance is harmful, the EPA is toothless?
It’s not toothless, but it has to use that data to make a stronger showing of harm balanced with economic impact.
You’re looking at it only from the point of view of avoiding harm from pollination. But the economic side of that dichotomy is that it’s less pain to ban something that nobody is using yet than something that’s widely used and people rely on.
As they say, wishing things to be so, don't make them so.
Shoehorning old laws and statutes to cover new things, is probably not the best way to go about regulation -though it happens. It's preferable that they establish new laws to address current issues. I prefer the courts to not be activist and for them to make the legislators actually do the work they are supposed to be doing rather than being timid for fear of upsetting voters or donors. It's their job to act on behalf of their citizenry.
That's always been the weirdest thing to me: If gas going up a few tens of cents a gallon causes you such "economic anxiety" that you vote for a literal chronic failed businessman to set the tone of your country, maybe you weren't doing very well to start with, and you should consider blaming the people who have been in power 90% of the past 50 years
Then again, these are the same people who think Biden somehow has direct control over gas prices, and not, you know, the Saudis who run OPEC and have very strong ties to that same failed businessman and political party so I guess they don't have a great grasp on reality. Or the ability to recognize pattern, since the gas price regularly goes up before elections for some reason
We thought we had it, though. The whole idea behind the EPA's charter is that it's empowered to regulate harmful materials for the benefit of public health and the environment.
This is a technicality (letter, not spirit) legal argument the court is making: the chemicals in question have a long history in industry, because when they were introduced we didn't know they were bad. Now we do, and the EPA banned them.
But no, say the clever supervillains on the Fifth Circuit: the specific rule under which the EPA issued the ban was intended for new processes, not old ones. So they have to issue a different regulation under a different statute. Which they totally have the legal power to do, but because they didn't do it exactly right the court says the whole ban is ejected and we can go right back to making poison.
A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place for obvious reasons. But... yeah, this is the fifth circuit.
>A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place
Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."
They don't usually do it, but the scope of what they _can_ do has historically been broad.
Transiently keeping a ban seems pretty plausible as a possible outcome, to me.
(I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.)
Were these cases about what the law says or what the repercussions are for breaking them? I don't think there is much leeway in terms of the former. Technically a judge can acknowledge that a law is unconstitutional without ordering the law not be enforced, but to my understanding it is still not enforceable even in that case. In any event I think you should read the actual opinion here because you seem to be making out the court as something it really isn't, at least in this case.
In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is.
> But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."
The court literally conceded that the EPA has the authority to regulate this material! (See section IV at the end of the decision: "We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed [...]")
That's what's so infuriating here. The court recognizes that the EPA did something within its regulatory purview and for public health reasons that the court doesn't dispute. And it undid it anyway, quite literally "endangering public health" in a legal sense, all because of a technicality that even the court recognizes isn't material.
Again, there are plenty of reasonable ways to address the procedural fuckup without stepping in and stopping the EPA from doing what the EPA is designed to do.
Nobody is arguing whether or not EPA has the authority to regualte the process in general. When I say, "there is no law allowing the government to do this," "this" is referring to regulating the process without conducting the appropriate cost-benefit analysis required for ongoing uses.
>stepping in and stopping the EPA from doing what the EPA is designed to do.
The EPA was designed to follow the Toxic Substances Control
Act (among other laws).
That's doing nothing but recapitulating the partisan nitpickery in the decision. My point was that the court had copious ways to enforce the technicalities under the law without maximally (!) interfering with the operation of the regulatory agency. They chose not to, not because of any genuine concern for the law but because they wanted to dick with the EPA for partisan reasons.
I'm not sure how following the law is partisan. Also your claim that the intent/spirit of the law is to not have the EPA perform a cost-benefit analysis before regulating these processes is wrong in any event. There is no way to claim that something explicitly written in the law is against its own spirit. I'm not familiar with European law but I bet even they would not accept that claim. If we could really decide all environmental laws based only on if they meet the goal of "regulating harmful materials for the benefit of public health and the environment" then congress would have just written that one line and be done with it. Instead they wrote that a cost-benefit analysis must be performed. That is the intent of the law because that is what it says. That is, if we can remove any statute based on some unwritten goal of what the statute should achieve, even if it is explicitly contradictory, then there is no point of the law at all.
The EPA themselves defined what is a "new use" as anything that wasn't ongoing as of and after 2015, and the court threw the book at them for being hypocrites with their own logic.
The court is saying the EPA can and should use Section 6 to regulate the chemical and process in question, rather than bastardizing Section 5 to skirt due process.
The EPA can only do what Congress says it can do. The law Congress wrote deliberately creates a distinction between existing uses and new uses. And the law deliberately makes it harder to ban an existing use than a new one.
The environmental laws are full of those distinctions. For example, under the clean air act, the emissions control technology you need to use for new emitters is different than for existing emitters. Congress doesn’t like to disrupt industry because voters care vastly more about jobs than they do about the environment.
Why would it be “reasonable” for a court to leave an illegal agency order in place? That seems like the opposite of reasonable—that sounds like lawlessness.
What constitutes new? New knowledge? or can we construe that PFAS are a New product as they weren't identified earlier. If we have to get pedantic, in these cases we should, because that is what the law intends.
By the EPA's own definition, as cited in the ruling: Any uses that do not have an ongoing use as of and after 2015.
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>... The proposed rule
also made clear that the SNUR would apply only to “any use not ongoing as
of the date on which this proposed rule is published.” Id.
If you look at the context of the statute, it’s clearly distinguishing between stuff companies already make versus new stuff companies intend to make. For example, it requires giving notice to the EPA of “such person’s intention to manufacture or process such substance.”
These days you have to be your own safety agency, from killer drugs, to cancer-causing chemicals, to the new plastic sprays they're putting onto the produce. It's all just hand waved by the agencies.
But it's always been this way. OTOH with the Internet people are creating communities and helping each other to avoid these poisons and dangers, instead of being isolated by the propaganda-infused normies who don't mind being poisoned at all.
Nice shill comment, persona. This is why you don't get to participate in the online communities I've mentioned. All the conspiracy theories are coming true, BTW, and The Ukraine is losing. 60% of Americans believe 2020 was rigged.
These days you have to be your own safety agency, from killer drugs, to cancer-causing chemicals, to the new plastic sprays they're putting onto the produce. It's all just hand waved by the agencies.
It's odd that the legislative framework surrounding their powers to ban chemicals is only applicable to "new" applications. That's the easiest way to handicap it's efficacy.
I also have you wonder how expensive it would've been to retool their plant for a safer plastic type vs the lawyer fees they spent on this. I would not be surprised if the fight was ideologically motivated, but still.
I am also not really clear about what these folks are doing.
So far as I can tell they have a process to functionalize the surface of polyolefin plastics (polyethylene, polypropylene at the very least) with fluorine atoms. If you want a plastic like that to not be degraded by contact with oils or want the last bit of shampoo to come out of a container it's highly effective.
I'm imagining that they are exposing the containers to some fluorine containing liquid or gas. If the F atoms are binding to a polymer chain and really sticking there that is probably good clean fun, at least in the short term, but I can picture there could be side reactions that would make PFAS that could leach out. (I doubt they are buying PFAS and using it as a primary reagent, PFAS are not reactive enough to functionalize anything.) The more I think about plastics I think of how the material is mostly these long chain molecules but there are also additives, unreacted monomer and other substances left over from the manufacturing process that could diffuse around the chains and get out. If the Inhance technology let you eliminate additives it might be a net positive.
On the other hand if any kind of chemical recycling of plastics takes off, I can see PFAS molecules being produced, but probably not a huge amount since the surface and not the bulk of the plastic is affected.
“Not only did we measure significant concentrations of PFAS in these containers, we can estimate the PFAS that were leaching off creating a direct path of exposure,” said study coauthor Graham Peaslee, PhD, professor of physics in the Department of Physics and Astronomy at Notre Dame.”
I’m glad the EPA tried but have to wonder why congress can’t do their jobs.
> why congress can’t do their jobs.
> Maybe because the primary interest of half the elected representatives is to make sure it doesn't. They're subversives pushing for a fascist dictatorship.
I don't think it is that simple or a helpful analysis. Moreover, there's also a paradox there - we are talking about banning something here, which would be the outcome of either the-majority-have-ruled or a decree by a "dictator".
Project 2025 and everyone still supporting Trump, for starters.
Don't be obtuse. Mitch McConnell openly stated that their goal during Obama's presidency was to prevent him from doing anything.
Meanwhile, during Trump's presidency, democrats spent the whole time compromising to get things done, to keep the government open when they could, to keep things alive. Fucks sake, the ACA itself is one big compromise, it's an explicitly republican designed system!
But no, we are supposed to play pretend and "both sides" bullshit that democrats are somehow just awful, meanwhile the republicans bitch about border security for months, and democrats come out with a BIPARTISAN border security bill, in what is absolutely a PR defeat for them, to admit that the border could use more effort and money and security, which it does, and then that bill gets absolutely shut down, explicitly because the republicans did not want biden to get "a win".
So the border is a huge issue for millions of Americans, they cry and cry and cry that they are suffering and are just about to call in the National Guard because it's an absolute army of illegals coming across the border they say, but when Biden offers them a gimmy to fix it, to provide them everything they've asked for, they'd rather just continue suffering.
They are actively removing basic women's rights. But that's not "a facist dictatorship" if someone specifically saying they will be a dictator for a day if they are elected is elected!
> They're subversives pushing for a fascist dictatorship.
Like you, I used too feel like one side had bad faith motives and just wanted to break stuff and hurt people. It was a really miserable outlook to have.
Fortunately through life, I ended up meeting a lot of people and being exposed to a lot of political and philosophical diversity, and I learned that it isn't true at all. There are some small number who do want to destroy things, but even they mostly only want that to get to a better place in the long term, (and they see the collapse or destruction as necessary and inevitable to get there).
I encourage you to meet people on the other side and really get to know them. It probably won't change your political opinions, but it will correct an erroneous pessimism about people's motives. The world becomes a much better place when you stop operating in defense mode and operate in discovery mode instead, so it's definitely worth it.
I think you're missing the point that it's not grandma down the street that's got the bad faith motives. You can make as many politically opposing friends as you want that isn't going to prove that the people paid 6 figure salaries while still being paid insane amounts through lobbying are making sound logical decisions based on what's best for the people.
Thanks that's fair criticism. There's definitely a big difference between Grandma down the street and John congressman the political animal.
Though even among politicians I've found the same patterns. There are a higher percentage of partisans than in the general population, but they still have the same underlying motives. In my experience they tend to be more jaded, and tend to overly trust others or under trust based on the color of jersey they are wearing, but they mostly have good motives*
*Excepting corrupt people, which motives don't matter because their selfishness takes priority
The natural outcome of the non delegation theory is that every member of congress needs to work at the mint printing money as that power can not be delegated to anyone else, federal prisons must close because there is no way we have enough representatives to run them.
Yes Congress did give the EPA authority to evaluate the evidence and promulgate rules but they did not give them the authority to violate the law. This is but the latest example of of the EPA being correctly guardrailed by the courts. I only wished that the courts could directly penalize the person at the EPA who knowingly exceeded their authority. Admittedly it was for a worthy cause but they or the Congress needs to remedy this through lawful channels.
“does not count as a significant new use since Inhance has been using this process since 1983”
If you learn to see the world the way capital sees it, it makes some sense.
If you tell a chemical company that it can't make X but it doesn't have a factory to make X, they are not going to be so sore about it.
If they've borrowed from the bank to make a factory that makes X and then you tell them they have to shut it down they are going to be a lot more upset. The EPA can't discharge their bank loan, for one thing.
there was a ban on the most wasteful uses of CFC, but the main effect was that people quit building new CFC factories, it took almost two decades to shut those factories down.
In the case of CFCs the dangers were hypothetical in the 1970s. It wasn’t until the mid-to-late 1980s that the ozone hole was documented and the chemistry of how it happens really understood. (I was doing a student project analyzing satellite observations of chemical species in the atmosphere around this time.)
It is also telling that the aerosol spray can ban was in 1978 and Dupont’s patents for CFCs ran out in 1979. Dupont was a CFC advocate up until 1986 when they had patents for HCFCs, at that point they thought a ban was a great idea.
We’ve been through a regulatory treadmill since then where now the first generation of HCFCs are known to be powerful global warming gases and those are getting banned so these are being replaced by newer patented substances. Asthma inhalers that would have been cheap have been expensive because they’ve either getting filled with new F-gases or are dry power inhalers, either way they are still under patent.
Someone has to be the advocate for the thing the government is trying to regulate/ban, we have an adversarial court/justice/law system in this country. Of course the party with the most to lose is going to be the one on the side of against it and of course that party is going to stop advocating when they no longer have that interest.
It's a good thing that people with something to lose can influence the government and make their voices heard. It's the job of the regulators to take that information and correctly weigh it against the interests of the people they represent. The problem is and has always been the regulators.
You're painting Dupont as the bad guy for advocating for themselves while giving a pass (passively) to the people who are supposed to be advocating for us.
Seems like a good lens through which to view California politics, which is often dominated for better and worse by special interests like the trial lawyers, firefighters, etc…
They can, but like many of us, they’ll go down kicking and screaming due to sunk cost. The difference is that they’re operating at the scope of tens or hundreds of millions of dollars. So they’re willing to kick and scream accordingly.
> I’m glad the EPA tried but have to wonder why congress can’t do their jobs.
There is a certain large percentage of the population who vote in people who actively want to eliminate all oversight/regulations. How do you do that? Make the regulators look like they're not doing their jobs and say, "See? We just need to get rid of it all! They're wasting YOUR tax dollars!"
Congress can't do much of anything. Their ability to pass anything more important than naming a post office is essentially nil. They can't even perform the basic operation of keeping the government open, except by heroic last-minute effort.
Congress' rules were designed to protect minority opinions, and they're easily taken advantage of to prevent anything from happening at all. A fair number of Congresspeople were elected with the specific goal of locking Congress up, and they're pretty effective at it.
Don't be hand wavey though, there's only one political party doing this bullshit, and they've been open about their strategy and goal since at least Obama, and possibly even as far back as Newt Gringrich.
And they seemed to have no problem "getting things done" when the task was to ram through a supreme court justice right before an election after spending a year saying you cannot approve a supreme court justice "during an election year"
In Parliamentary system this is somewhat equivalent to "hung parliament" and usually results in re-elections. Governments must prove minimum support to pass legislations before they can claim to be "in charge"
We deliberately designed it this way, to prevent one party from having too much control.
Instead, we have no control. The legislature is effectively useless. The executive branch continues on, under not-always-clear authority. The judicial branch can easily throw a wrench into that authority, often more for political reasons than legalistic ones.
All PFAS is not created equal, the phrase 'pfas bad' is about as illustrative as 'nuclear bad' since pfas molecular half-lives range over 10 orders of magnitude in time (and probably more as people explore femtosecond chemistry
).
Half of new pharmaceuticals are pfas for example, lipitor, xanax, flonase, etc.
The EPA move came after the agency determined that types of PFAS created during the fluorination process “are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture.”
so using some legal loophole to work around the EPA in this case seems pretty "bad", no?
just to argue against myself:
from inhance's website:
When Inhance first became aware of the potential for fluorination to unintentionally form miniscule quantities of certain PFAS impurities, the Company researched and developed treatment modifications to reduce these impurities in most instances to undetectable levels in the plastic packaging articles it fluorinates. Overall, Inhance’s treatment modifications have reduced unintentional formation of these impurities by more than 90%.
To the extent any PFAS remains present, independent testing has verified that in treating 25 million pounds of plastic packaging articles annually, Inhance’s fluorination process forms less than 15 grams – equivalent to the weight of a few grapes – of PFAS impurities. That amount represents less than 0.00000002% of the approximately 85,000 tons of PFAS generated domestically by other industries every year. Nonetheless, Inhance continues to conduct research and identify additional treatment modifications to further reduce and eliminate PFAS impurities from the fluorination process.
obviously they have a lot of bias and financial interest in this topic but it would be interesting to learn what the real deal is
There are forces which actively seek to prohibit government from functioning. The 5th Circuit Court is notorious for this, but is far and away not the only one.
137 comments
[ 2.1 ms ] story [ 197 ms ] threadWe need legislation to ban these chemicals outright so that companies can't pull out these kinds of arguments to keep poisoning our food and the environment.
See my previous comments on the matter:
https://news.ycombinator.com/item?id=39875212
https://news.ycombinator.com/item?id=39875156
https://news.ycombinator.com/item?id=39876314
There was argument over how to interpret the statute and one of the attorneys tried buffaloing the judge with “Well actually judge, I’m on the committee that drafted the bill and our intent,” The judge cut him off and retorted that he didn’t care what anyone intended, he was going to go by what the statute actually said.
I made a mental note to never argue legislative intent in that court.
It’s impossible to write any law which covers every scenario and is not either overbroad (penalizes actually desirable or ‘ok’ behavior in some cases), not being possible to get around for bad behavior, or so vague it heavily restricts desired behavior.
Hell, look at the legal battles and drama around murder trials or corporate malfeasance for clear examples. And those are the ones where the bad actors were so clearly being bad that professionals felt they could nail them to the wall in court.
Also, as the old saw goes - ‘if the letter of the law is not in your favor, argue the intent.
If the intent of the law is not in your favor, argue the facts.
If neither the letter nor the intent of the law is in your favor, pound the table.’
Carl Sandburg perhaps?
For example - did someone commit first degree murder or something else (manslaughter, second degree murder?), if they intentionally laid in wait and shot someone they thought was person A - but it was actually person B, who looked similar but they actually didn’t know at all.
After all, they didn’t intentionally commit premeditated murder against person B did they? But they did definitely premeditate something that became a murder!
So was this negligent homicide in fact (they accidentally killed simeone who wasn’t their target due to negligent behavior), or first degree murder (intent) because they intentionally murdered a human being with premeditation - though it was actually an accident they killed that particular human being, and they had no premeditation or intent to kill that particular human?
TL;DR there’s definitely room to dispute whether this decision was merely “calling balls and strikes” based on the meaning of the law or kinda a damn stretch.
A good judge who recognizes their intended role in the system. They are there to interpret the law and apply them, not to create them.
That sometimes leads to situations like this where the outcome is silly, but that's the fault of the system, not the judge.
If we decide it's worth letting unelected and mostly unaccountable dictators write laws, then we could fix this particular problem. IMHO it's not worth it
In a long running country, stability and longevity is preferred, so strict absolute adherence to process is critical.
And you can’t have both.
https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_P...
This was obvious.
If that's not the worst, how do you define worst?
If you bothered to read the ruling, you would learn that the EPA specifically exempted ongoing processes as of and after 2015 under Section 5. This obviously exempts Inhance's fluorination process and is in line with Section 5's wording.
You would also learn that the EPA did not include fluorination among its list of things to regulate.
The EPA then cited those regulations under Section 5 to order Inhance to stop their decades-old fluorination process.
That is simply bullshit, that is pulling regulations out of thin air. Note that the court explicitly cites Section 6 is what the EPA should use to regulate PFOA, which the court explicitly says is by itself not wrong.
Any reasonable person should read the ruling and most likely be applauding the court for bringing a misguided executive agency into line, because the United States of America is a country governed by rule of law and the EPA in this instance did not follow due process.
I did read the ruling[1], and unless the ruling is straight up perjury the EPA dropped the ball.
Criticizing the court for not ruling the way you wanted, and presumably without reading the ruling because you're grossly disregarding their value, is unreasonable and erodes rule of law.
[1]: https://news.ycombinator.com/item?id=39876314
>a country where citizens get to distrust their government.
And the court called out the government (the EPA) for being unworthy of trust in this instance.
Indeed, the court is taking a non-binding FAQ on the EPA website, and treating that as more legally constraining on the EPA than the actual regulations they issue. That's f'ing ridiculous.
And to make things more ridiculous, they created a binding implication, where non actually existed in the proposed language that the 2015 exemption would not apply to ongoing uses.
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
So not only are the EPA aware of what Section 5's "new use" language means and tried to twist it during enforcement, they ignored their own very specific definition to try and regulate Inhance.
That is what the courts are telling to EPA to stop doing. The courts are ordering the EPA to cite the appropriate law and write appropriate regulations following due process first, otherwise known as Section 6, in order to regulate Inhance and their fluorination process which the court reaffirms is something the EPA can do.
They clarified the definition of "new use", but PFAS was already covered by the "new use" as defined in the statute.
Ergo, judicial perjury.
That's not what anyone said though. There's a difference between disagreeing and being unreasonable. Here, you too are being unreasonable because you've purposefully skipped past this in order to twist this even more politically.
No, I find the court's ruling here reasonable because I read through the ruling and the included timeline of events and found their conclusion makes sense. That is quite different from handwaving away their authority because you just don't like their rulings.
You could also read the ruling like I did and try arguing what about it is "wild" and "twisted" as the comment I replied to put it, an unreasonable sentiment also shared by most of the people in this thread.
For starters, do most of the people here realize the court affirms the EPA's right to regulate PFOA and does not find fault with the core reasoning itself? If this court is "wild" and "twisted", is it "wild" and "twisted" for the EPA to regulate PFOA properly under Section 6?
But the post was about the 5th Circuit in general, which has come out with a number of incredibly unreasonable rulings. That was the criticism, that the 5th Circuit shouldn't inherently be trusted as reasonable just because.
>You could also read the ruling like I did and try arguing what about it is "wild" and "twisted" as the comment I replied to put it, an unreasonable sentiment also shared by most of the people in this thread.
I feel like you haven't been engaging with what I actually wrote with if you keep arguing this.
Yes, and that goes both ways.
I read the ruling and found its conclusion reasonable, thus the court insofar as this case is reasonable. If you or anyone else thinks the court is unreasonable with their ruling here, please read the ruling and make your case like I have. What part is "wild" and "twisted"?
>I feel like you haven't been engaging with what I actually wrote with if you keep arguing this.
What part of "I read the ruling and found it reasonable." do you not understand? What part of "I find shooting the messenger unreasonable." do you not understand? What part of "Denying the judiciary just because you don't like them is an attack on rule of law." do you not understand?
As I have several times pointed out to you, the thread you responded to wasn't discussing the reasonability of this ruling, but the reasonability of the 5th Circuit in general, to which it has also been pointed out to you, has had a number of its more extreme decisions overruled by the current supreme court.
>What part of "I read the ruling and found it reasonable." do you not understand? What part of "I find shooting the messenger unreasonable." do you not understand? What part of "Denying the judiciary just because you don't like them is an attack on rule of law." do you not understand?
There's no part of that which I don't understand, and it's an odd response to insist I'm not understanding your posts, which I very clearly do and have repeatedly pointed out as pertaining to a different issue than what was being discussed, by asking if I understood that you think the court is reasonable. Yes, we get that you think the court is reasonable here. Try reading my posts again. Or, don't. Either way, no need to be angry.
What is the point of referring to other cases, which may or may not be unreasonable, and using them to throw out the court's authority? Without even reading their ruling, for that matter. Or worse, for no reason other than you don't like their ruling?
The answer is there is no point, at least not any that is productive. All you achieve is the spreading of doubt and uncertainty about the judiciary and thus the laws governing the land. It's an attack on the rule of law, and the only logical conclusion if this is kept up is anarchy. I find this ironic, actually; because these people presumably want to protect the rule of law, but they are achieving the exact opposite.
Read the ruling and make your case. Otherwise there can't be any useful conversations.
Because the discussion was about the quality of the Court's opinions in general. I'm not sure what is so difficult about that for you to grasp.
>The answer is there is no point, at least not any that is productive.
We are just people sharing opinions on HN, I'm not sure where you got the impression that your posts were productive, or any of the posts here are productive, nor by what means you seem to have used to come to such a conclusion.
>Read the ruling and make your case. Otherwise there can't be any useful conversations.
Once again, you are being unreasonable. It's completely valid to talk about the general quality of decisions made by a circuit court. I'm not sure how you came to the conclusion that such a thing cannot be discussed "productively" And it seems you are basing your opinion here on the fact that wait for it others disagree with you!
>The answer is there is no point, at least not any that is productive. All you achieve is the spreading of doubt and uncertainty about the judiciary and thus the laws governing the land.
The legitimacy of any court is based on, in part, how it is received by the public. That's the nature of government and law. I'm really not sure how you came to the conclusion that courts cannot be criticized, but it's flat-out asinine. The 5th Circuit has done its own work to spread doubt and uncertainty regarding the quality of its rulings, and that is absolutely not the fault of anyone pointing out the deficient quality of a number of its recent rulings. To suggest otherwise seems more than stifling.
Because the discussion is about the ruling on this case by the court. Discrediting the court because of dogma is utterly pointless.
>Once again, you are being unreasonable. It's completely valid to talk about the general quality of decisions made by a circuit court. I'm not sure how you came to the conclusion that such a thing cannot be discussed "productively" And it seems you are basing your opinion here on the fact that wait for it others disagree with you!
It's one thing to read the ruling and poignantly point out flaws so they can be criticized in ways that are useful. Constructive criticism, as it's often called. Criticizing the judiciary in itself is fine and certainly encouraged. In fact, this is fundamental to the concept of appealing to higher courts.
What's not fine is criticizing the courts solely because you don't like how they ruled. You didn't even read their ruling. You're just trying to discredit an entire foundational institution because they didn't act in your favor. That is nonsense and an affront to rule of law and a functioning society.
>The legitimacy of any court is based on, in part, how it is received by the public. That's the nature of government and law. I'm really not sure how you came to the conclusion that courts cannot be criticized, but it's flat-out asinine.
See prior point.
>The 5th Circuit has done its own work to spread doubt and uncertainty regarding the quality of its rulings, and that is absolutely not the fault of anyone pointing out the deficient quality of a number of its recent rulings. To suggest otherwise seems more than stifling.
If we're going to discuss the ruling of a court, it is a requirement that we read the ruling and consider the points made. That is not happening here, and I am going to call that bullshit out.
No, the post you replied to was about the 5th Circuit in general.
>What's not fine is criticizing the courts solely because you don't like how they ruled. You didn't even read their ruling. You're just trying to discredit an entire foundational institution because they didn't act in your favor. That is nonsense and an affront to rule of law and a functioning society.
Once again, not what anyone was doing. It is what you are doing about other people's criticism.
>If we're going to discuss the ruling of a court, it is a requirement that we read the ruling and consider the points made. That is not happening here, and I am going to call that bullshit out.
We were discussing the 5th Circuit's rulings in general. I'm not going to belabor this, you can make up whatever you want to justify your posts, that's your choice.
Which was in reply to another post about the 5th circuit, which was in reply to my post about the ruling on this case, which was in reply to a post about the need for regulations to ban chemicals, which was in reply to the linked article about the 5th circuit's ruling on this case.
This whole thread is about the ruling on this case.
>Once again, not what anyone was doing. It is what you are doing about other people's criticism.
Literally what the post I replied to was doing, calling the court "wild" and "twisted".
Incidentally, nobody including you has mentioned what about this ruling is "wild" and "twisted" yet despite numerous requests to do so. Are you aware how discussions on a subject matter are conducted?
>We were discussing the 5th Circuit's rulings in general. I'm not going to belabor this, you can make up whatever you want to justify your posts, that's your choice.
See first point. If you want to talk about the 5th circuit in general, make your own thread. This thread is about the 5th circuit's ruling on the case between EPA and Inhance.
So you are saying no one can discuss the 5th circuit in general in response to one of its rulings? One might even say "this ruling is reasonable, but that court sure hasn't been lately" and you'd still say the same. Get a grip!
>Incidentally, nobody including you has mentioned what about this ruling is "wild" and "twisted" yet despite numerous requests to do so. Are you aware how discussions on a subject matter are conducted?
I never said any of those things. You are really picking the wrong bone with me.
Why do you think you can brazenly lie to people like this? It's not going to work and it's not acceptable.
The law makes a distinction between new uses, which require certain notice to the EPA, and existing uses. The idea is that the EPA can be more aggressive with a new thing that isn’t being used yet, than an existing thing that people are relying on. That balance was written into the law.
The environmental laws are full of these frameworks that force the EPA to make different trade offs. They’re not loopholes for industry, they’re the reality of balancing costs and benefits in a country where voters will throw you out of office if gas goes above $4/gallon. You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
That's up to a judge, and if necessary, the supreme court.
Lotta people don't give enough credit to a system that has been around longer than most others in the world. There's a reason why everyone bets on the USA, there are contingencies for contingencies for contingencies. If it's important enough it will get done.
On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
The Supreme Court is clearly unhinged and monstrously outdated. Checks and balances? Lol.
And the fish rots from the head. The abuses of lower courts and basically every regulatory body are well documented, and the accountability for corrupt judges is near-zero. Any institution which actually functions to protect people gets defunded.
> There's a reason why everyone bets on the USA
Because a dying empire is liable to do just about anything to get what it wants. Genocide, mass murder, arming your enemies, blackmail on a global scale, sanctions that murder millions, wrecking the climate, criminalizing abortion - nothing is off the table.
Among many other reasons, that's why the world has viewed America as the number 1 threat to democracy, world peace, and stability every single year since 2003. "Everyone bets on the USA" to fuck shit up. That's not an exaggeration, though American's never believe it. It's not close either. We're number 1.
Very few people trust American regulation; whether on food, chemicals, privacy or anything else. We are a global laughing stock; a stark example of why unregulated capitalism is so dangerous.
There's a reason why America's water quality is among the worst in the developed world. There's a reason why we're mocked world-wide. There's a reason why our Presidential 'options' are the two most unpopular politicians in the country for three elections running, and it's not cause our system is working so well.
That's a silly strawman. In that case you'd sue for inappropriate regulation and win, just like this case, but better because you'd be right. The EPA's charter doesn't allow for political fundraising, it would be a trivial case to win.
The complaint here isn't that courts shouldn't have the ability to oversee government agencies to make sure they're doing it right. The complaint here is that the fifth circuit is deliberately interfering with the operation of a government agency doing what it is supposed to do.
Even if the government goes after them, they'll be worthless. They specialize in fluoridated products, I bet PFAS is most of what they make. So the stock will be worthless.
Their physical holdings are likely to be... Primarily fluoridating equipment, which won't be worth much if we're banning those processes anyways.
There won't be anything worth anything to seize, it'll be the government's mess to clean up.
> On the flip side, imagine if a crony in the EPA could arbitrarily ban products from companies that didn't donate enough to a certain political party.
That company would presumably sue under the argument that the EPA is only authorized to regulate chemicals harmful to the environment? It is a dramatically easier solution than "have Congress deal with it", which historically has meant "do nothing about it".
Also, your "solution" just pushes that problem up a tier. What if Congress decides to target a political party? That one is much harder to fight in court too.
The EPA has wide unilateral authority to ban new uses, for which we have little to no usage data for. But if we start executing those uses and get actual usage data that a substance is harmful, the EPA is toothless?
And that's a good thing why exactly?
> You’ll never get a law that says “EPA can ban anything it wants, costs be damned.”
Yet we do, they apparently can only do it based on wild guesses though. Data and informed decisions be damned; well just let them keep making PFAS, and have the citizens pay for the externalities through health insurance premiums, the true blue American way.
> Inhance has been using this same fluorination process for 40 years. The EPA itself has repeatedly told companies doing flourination they’re not covered by PFA orders. The EPA changed its mind based on new science, for probably reasonable reasons. But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
Quick, someone tell the tobacco lobby, they're gonna love this! Something something long standing usage something something loss of jobs something something market cap something something, you can't regulate cigarettes!
I don't think the parent comment said that. They just said that the rules were set this way deliberately, and that it's not just a loophole, which is an interesting and informative thing to point out.
I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
It's like right at the top of that post. And
> But it’s entirely fair to make it go through the processes in the law for banning a longstanding use, instead of trying to use its authority over new uses to get at the same thing.
At the bottom. It's capped on both ends with calling it a good thing.
> I don't like the outcome, nor do I like the system that enabled it, but it's useful to have a deeper understanding of why things are the way they are.
Sure, but questions about whether the rule is deliberate or not are answering "how", not "why". In fact, it's mostly trying to distract from the "why" to answer "how".
It’s not toothless, but it has to use that data to make a stronger showing of harm balanced with economic impact.
You’re looking at it only from the point of view of avoiding harm from pollination. But the economic side of that dichotomy is that it’s less pain to ban something that nobody is using yet than something that’s widely used and people rely on.
Shoehorning old laws and statutes to cover new things, is probably not the best way to go about regulation -though it happens. It's preferable that they establish new laws to address current issues. I prefer the courts to not be activist and for them to make the legislators actually do the work they are supposed to be doing rather than being timid for fear of upsetting voters or donors. It's their job to act on behalf of their citizenry.
Then again, these are the same people who think Biden somehow has direct control over gas prices, and not, you know, the Saudis who run OPEC and have very strong ties to that same failed businessman and political party so I guess they don't have a great grasp on reality. Or the ability to recognize pattern, since the gas price regularly goes up before elections for some reason
We thought we had it, though. The whole idea behind the EPA's charter is that it's empowered to regulate harmful materials for the benefit of public health and the environment.
This is a technicality (letter, not spirit) legal argument the court is making: the chemicals in question have a long history in industry, because when they were introduced we didn't know they were bad. Now we do, and the EPA banned them.
But no, say the clever supervillains on the Fifth Circuit: the specific rule under which the EPA issued the ban was intended for new processes, not old ones. So they have to issue a different regulation under a different statute. Which they totally have the legal power to do, but because they didn't do it exactly right the court says the whole ban is ejected and we can go right back to making poison.
A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place for obvious reasons. But... yeah, this is the fifth circuit.
Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."
They don't usually do it, but the scope of what they _can_ do has historically been broad.
Transiently keeping a ban seems pretty plausible as a possible outcome, to me.
(I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.)
[1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/yor...
In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is.
[0] http://realneo.us/system/files/HousingJury20100723135802-1.p...
The court literally conceded that the EPA has the authority to regulate this material! (See section IV at the end of the decision: "We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed [...]")
That's what's so infuriating here. The court recognizes that the EPA did something within its regulatory purview and for public health reasons that the court doesn't dispute. And it undid it anyway, quite literally "endangering public health" in a legal sense, all because of a technicality that even the court recognizes isn't material.
Again, there are plenty of reasonable ways to address the procedural fuckup without stepping in and stopping the EPA from doing what the EPA is designed to do.
>stepping in and stopping the EPA from doing what the EPA is designed to do.
The EPA was designed to follow the Toxic Substances Control Act (among other laws).
The court is saying the EPA can and should use Section 6 to regulate the chemical and process in question, rather than bastardizing Section 5 to skirt due process.
The environmental laws are full of those distinctions. For example, under the clean air act, the emissions control technology you need to use for new emitters is different than for existing emitters. Congress doesn’t like to disrupt industry because voters care vastly more about jobs than they do about the environment.
Why would it be “reasonable” for a court to leave an illegal agency order in place? That seems like the opposite of reasonable—that sounds like lawlessness.
>Inhance asserts that “new” means “having recently come into existence,” or “not previously existing.”
>the EPA argues that a “significant new use” is any use “not previously known to the EPA.”[0]
Lots of commenters seem outraged by the court's decision here but to me EPA's claim is outrageous.
[0] https://peer.org/wp-content/uploads/2024/03/3_22_24-Fifth-Ci...
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.”
>... The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
Emphasis mine.
But it's always been this way. OTOH with the Internet people are creating communities and helping each other to avoid these poisons and dangers, instead of being isolated by the propaganda-infused normies who don't mind being poisoned at all.
I agree , it’s ultra fatiguing.
As far as I can tell this has been normal throughout history. Any modern thought to the contrary is, in that context, wishful thinking.
I also have you wonder how expensive it would've been to retool their plant for a safer plastic type vs the lawyer fees they spent on this. I would not be surprised if the fight was ideologically motivated, but still.
So far as I can tell they have a process to functionalize the surface of polyolefin plastics (polyethylene, polypropylene at the very least) with fluorine atoms. If you want a plastic like that to not be degraded by contact with oils or want the last bit of shampoo to come out of a container it's highly effective.
I'm imagining that they are exposing the containers to some fluorine containing liquid or gas. If the F atoms are binding to a polymer chain and really sticking there that is probably good clean fun, at least in the short term, but I can picture there could be side reactions that would make PFAS that could leach out. (I doubt they are buying PFAS and using it as a primary reagent, PFAS are not reactive enough to functionalize anything.) The more I think about plastics I think of how the material is mostly these long chain molecules but there are also additives, unreacted monomer and other substances left over from the manufacturing process that could diffuse around the chains and get out. If the Inhance technology let you eliminate additives it might be a net positive.
On the other hand if any kind of chemical recycling of plastics takes off, I can see PFAS molecules being produced, but probably not a huge amount since the surface and not the bulk of the plastic is affected.
I'm just going to post a link to my comments when this was discussed earlier, because I can't be arsed to rewrite them all:
https://news.ycombinator.com/item?id=39875212
https://news.ycombinator.com/item?id=39875156
https://news.ycombinator.com/item?id=39876314
I’m glad the EPA tried but have to wonder why congress can’t do their jobs.
I don't think it is that simple or a helpful analysis. Moreover, there's also a paradox there - we are talking about banning something here, which would be the outcome of either the-majority-have-ruled or a decree by a "dictator".
Don't be obtuse. Mitch McConnell openly stated that their goal during Obama's presidency was to prevent him from doing anything.
Meanwhile, during Trump's presidency, democrats spent the whole time compromising to get things done, to keep the government open when they could, to keep things alive. Fucks sake, the ACA itself is one big compromise, it's an explicitly republican designed system!
But no, we are supposed to play pretend and "both sides" bullshit that democrats are somehow just awful, meanwhile the republicans bitch about border security for months, and democrats come out with a BIPARTISAN border security bill, in what is absolutely a PR defeat for them, to admit that the border could use more effort and money and security, which it does, and then that bill gets absolutely shut down, explicitly because the republicans did not want biden to get "a win".
So the border is a huge issue for millions of Americans, they cry and cry and cry that they are suffering and are just about to call in the National Guard because it's an absolute army of illegals coming across the border they say, but when Biden offers them a gimmy to fix it, to provide them everything they've asked for, they'd rather just continue suffering.
They are actively removing basic women's rights. But that's not "a facist dictatorship" if someone specifically saying they will be a dictator for a day if they are elected is elected!
Like you, I used too feel like one side had bad faith motives and just wanted to break stuff and hurt people. It was a really miserable outlook to have.
Fortunately through life, I ended up meeting a lot of people and being exposed to a lot of political and philosophical diversity, and I learned that it isn't true at all. There are some small number who do want to destroy things, but even they mostly only want that to get to a better place in the long term, (and they see the collapse or destruction as necessary and inevitable to get there).
I encourage you to meet people on the other side and really get to know them. It probably won't change your political opinions, but it will correct an erroneous pessimism about people's motives. The world becomes a much better place when you stop operating in defense mode and operate in discovery mode instead, so it's definitely worth it.
There should be school trips to both Texas and San Francisco.
Though even among politicians I've found the same patterns. There are a higher percentage of partisans than in the general population, but they still have the same underlying motives. In my experience they tend to be more jaded, and tend to overly trust others or under trust based on the color of jersey they are wearing, but they mostly have good motives*
*Excepting corrupt people, which motives don't matter because their selfishness takes priority
https://www.cbsnews.com/news/supreme-court-chevron-deference...
“does not count as a significant new use since Inhance has been using this process since 1983”
If you tell a chemical company that it can't make X but it doesn't have a factory to make X, they are not going to be so sore about it.
If they've borrowed from the bank to make a factory that makes X and then you tell them they have to shut it down they are going to be a lot more upset. The EPA can't discharge their bank loan, for one thing.
In the case of CFCs,
https://en.wikipedia.org/wiki/Chlorofluorocarbon
there was a ban on the most wasteful uses of CFC, but the main effect was that people quit building new CFC factories, it took almost two decades to shut those factories down.
It is also telling that the aerosol spray can ban was in 1978 and Dupont’s patents for CFCs ran out in 1979. Dupont was a CFC advocate up until 1986 when they had patents for HCFCs, at that point they thought a ban was a great idea.
We’ve been through a regulatory treadmill since then where now the first generation of HCFCs are known to be powerful global warming gases and those are getting banned so these are being replaced by newer patented substances. Asthma inhalers that would have been cheap have been expensive because they’ve either getting filled with new F-gases or are dry power inhalers, either way they are still under patent.
It's a good thing that people with something to lose can influence the government and make their voices heard. It's the job of the regulators to take that information and correctly weigh it against the interests of the people they represent. The problem is and has always been the regulators.
You're painting Dupont as the bad guy for advocating for themselves while giving a pass (passively) to the people who are supposed to be advocating for us.
https://en.wikipedia.org/wiki/The_Logic_of_Collective_Action
if you want to get depressed about the prospect of "the left."
- cigarettes
- asbestos
- leaded paints
- now pfas
Not many of these companies around anymore, and the flow of new capital has dropped to near-zero
You know damn well why
There is a certain large percentage of the population who vote in people who actively want to eliminate all oversight/regulations. How do you do that? Make the regulators look like they're not doing their jobs and say, "See? We just need to get rid of it all! They're wasting YOUR tax dollars!"
Congress' rules were designed to protect minority opinions, and they're easily taken advantage of to prevent anything from happening at all. A fair number of Congresspeople were elected with the specific goal of locking Congress up, and they're pretty effective at it.
And they seemed to have no problem "getting things done" when the task was to ram through a supreme court justice right before an election after spending a year saying you cannot approve a supreme court justice "during an election year"
Instead, we have no control. The legislature is effectively useless. The executive branch continues on, under not-always-clear authority. The judicial branch can easily throw a wrench into that authority, often more for political reasons than legalistic ones.
It's really, really bad.
Half of new pharmaceuticals are pfas for example, lipitor, xanax, flonase, etc.
The EPA move came after the agency determined that types of PFAS created during the fluorination process “are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture.”
so using some legal loophole to work around the EPA in this case seems pretty "bad", no?
To the extent any PFAS remains present, independent testing has verified that in treating 25 million pounds of plastic packaging articles annually, Inhance’s fluorination process forms less than 15 grams – equivalent to the weight of a few grapes – of PFAS impurities. That amount represents less than 0.00000002% of the approximately 85,000 tons of PFAS generated domestically by other industries every year. Nonetheless, Inhance continues to conduct research and identify additional treatment modifications to further reduce and eliminate PFAS impurities from the fluorination process.
obviously they have a lot of bias and financial interest in this topic but it would be interesting to learn what the real deal is