Posted by: theoptimisticconservative | May 24, 2011

California and the Ridiculous State of Law in America

There’s reason to rejoice that a California state judge issued an injunction on Friday against the state cap-and-trade scheme (C&T) proposed in 2006.  For one thing, the case’s citation name is Association of Irritated Residents v. California Air Resources Board, and how often does that come along?  Irritated v. CARB would make an awesome name for a rock band.

The judge, Ernest Goldsmith, allowed the other elements of the 2006 law (AB 32) to proceed as planned, so small businesses and truck drivers and others who will be drastically affected by its emission-curbing requirements have no prospect of relief.  The important business of driving business out of California will proceed apace.

Of equal interest, however, is the basis for the judge’s decision to suspend the C&T plan.  The Association of Irritated Residents brought the suit originally because the C&T plan is likely to do exactly what any sensible person would predict:  place the greatest burdens on poor people.  Besides causing their bills to necessarily skyrocket and eliminating their jobs, C&T would allow high carbon emitters – which are located disproportionately in lower-income areas – to essentially buy “permits” (unused carbon allowances from others) to continue emitting.  Even if you don’t think it’s a burden to have lots of carbon dioxide emitted in your neighborhood, the argument that the impact will be unequal between income groups is sound.

But that argument was not the one adduced most directly by Judge Goldsmith.  His decision made reference instead to the requirements of the California Environmental Quality Act (CEQA) of 1970, and determined that the California Air Resources Board (CARB), established in 1967, had failed to comply with them in its preparation of the Scoping Plan for implementing the C&T scheme under AB 32.  In particular, CARB had failed to adequately study alternatives to instituting C&T, as required by CEQA.

Goldsmith actually issued his original ruling in that regard in January.  In the months since, CARB has failed to address his concerns: in multiple efforts at turning in better homework, it has yet to prove to his satisfaction that it has given adequate consideration to alternatives to C&T.

Having the judiciary play the role of referee in this regard works – at least partly – to the advantage of sanity in this case.  So that part is good.  What’s ridiculous is having a body of law and a bureaucratic apparatus so convoluted that it swings tentacles around and grasps itself by the neck and squeezes.

It is equally absurd to tolerate judges deciding whether boards or commissions have “adequately” complied with a regulatory requirement like “studying alternatives.”  I’m not complaining about the decision in this case, mind you, but from the reasonable man standpoint, how would the judge know what’s “adequate”?  In the case of a public policy issue with extensive technical aspects and major impact for dozens of constituencies, there is no such thing as a single standard of adequacy for the studying of alternatives.  The judge is merely expressing the opinion of one citizen about what constitutes an “adequate” effort to study alternatives.

If Americans genuinely think that we should turn such decisions over to the judiciary, we have completely lost touch with the meaning of limited, constitutional, consensual government.  The truth is that decisions about whether policy alternatives have been studied adequately belong, in joint trust, to the legislature and the executive.  Judges should not be refereeing such disputes.  There is no such thing as absolute truth or even constitutionality when it comes to “adequate studying”; there is only preference and opinion.  A judge doesn’t know any better whether the alternatives for environmental policy have been studied adequately than my state senator and representative do – or than I do, or my neighbors do, for that matter.

“Adequacy” in the studying of policy alternatives is precisely the kind of thing that should be voted on – not decided by a judge as if the law has some enduring standard to measure it by.  We have a very wrong idea of law if we think it is a judicially-refereed mechanism for edging toward the “right” answers about everything in life.  There are many, many things in life that are a matter of preference and opinion – and since we don’t all agree on them, government and law should obtrude on our arrangements in those areas as little as possible.

When the law is in proper relationship to the people, the scope of the judiciary is very limited, but actually more meaningful to the enterprise of “good government.”  Today, we have a body of law so huge and burdensome that it has started going 15 rounds with itself on a regular basis, and the judiciary acts as a referee on intricate and inherently political questions of policy.

It is possible to think in different terms, and to conceive of a regimen of law and jurisprudence much more like that envisioned by the Founders.  Americans need to wake up and recognize that accepting the way things are done now makes us importunate, dependent, and increasingly unfit to govern ourselves.

J.E. Dyer’s articles have appeared at Hot Air’s Green Room, Commentary’s “contentions,Patheos, and The Weekly Standard online.


Responses

  1. The California state cap-and-trade scheme (C&T) is the result of ecological ideology ascendant over any other consideration.

    Common sense is always the first victim slain upon the altar of ideology.

  2. The preference-based decision-making of judges that you illuminate here is of course matched by the preference-based decision-making of bureaucrats that you’ve pointed out elsewhere. In both cases we see an appeal to expertise that doesn’t–can’t–really exist, to solve a political problem without submitting it to the representatives of the polis.

    I think we as members of a complex and dynamic can feel drawn to the idea of expertise as comforting. We might not understand how everything works but someone does; if we can just hire that person to somehow look out for us things will be OK. It’s hard to keep in mind the sense that we and everyone else are looking out for us in the best way we can already. And we’re expecially easily stampeded toward the expert corral when experts warn of a global catastrophe.

  3. This is one of the results of 222 years of what Paul Johnson refers to as the “nomiocracy”, the domination of American life by the legal profession. As long as law school graduates design laws and regulations, implement them, oppose them and interpret them, the rest of the population will be paying for their BMWs, second homes in Aspen, and vacations in the Seychelles.

  4. California is turning into a post-Apocalyptic zone… One need only see Victor Davis Hanson’s latest essays in regard to the decline.

    It is where liberalism always leads. Collapse, feudalism, dark ages… of course not one of the judges issuing the order will be remotely affected by this decision…

    You might consider moving, or putting a mini-gun on the roof. But then, as in other deep blue states, only criminals can have guns.

    Too bad California doesn’t have a Sheriff Joe, instead of Governor Moonbeam… or his predecessor The Zipperless Governator…

    r/TMF

    • I’ll be emigrating out of California within the year, as early as this September, as late as spring of 2012. The lemmings have decided to rush over the cliff, nothing will dissuade them. An exercise in self-immolation.

      Historically, only of interest in pondering whether the rest of the nation shall join them or find the self-discipline to sadly observe the dysfunction while separating themselves from the self-destruction. The ‘Good Samaritan’ cannot save the individual (or people) intent upon their own economic suicide.

      • why o why does your emigration come in the same ‘graph as a lemming reference?

  5. Gee, I guess that judges can figure out what’s an adequate consideration by reading the documentation issued by administrative bodies.

    • Your faith in the common sense of the Judiciary is quite touching fuster and, an indication of a quite breathtaking naivete. Liberality, of course allows for no other attitude, so not particularly surprising but naivete is always explanatory.

      • it’s not faith, Geoffrey, it’s a realistic understanding of how law works, for better or worse. all the legislation in the world still must be interpreted and enforced. there’s really no decent alternative to having a judiciary.

  6. Auntie Jen,
    Let’s face it; nobody that lives in the territorial United States really cares about what happens in a dysfunctional federated socialist republic. What we are extremely attuned to is that nagging question as to whether or not fuster will ever get his picture.

    Some issues are of such compelling interest that they trump all other considerations.

    Ok, ok, nobody actually cares about fuster either. 🙂

    • wrong thread, Jim. you’re disfunctioning up a bit.

      • Not so, fuster. The Federal Socialist Republic of California was the subject response which conveniently (ok, intentionally) segued into your picture fetish.

        Relax. Just accept your role as the entertainment here. 🙂

        • Well, I’m all deferential and glad to be of use.
          I wish I was like you, easily amused.

          • I see that we have reached an unequivocal agreement. I concede that I am very easily amused and entertained.

            Please continue to contribute. I would miss you and Paulite if either of you left this blog thereby reducing me to responding to the OptiCon’s nonsense.
            🙂

            • nah, Paulite may think that the opticon speaks only nonsense, I just think that she interprets things tendentiously too oft.

  7. “It is a remarkable phenomenon, well worthy of attention, that California, in proportion to its population, has more cases of insanity than any other land. Hardly a day passes that one does not hear of one or two cases in some part of the State and that the unfortunate victim of this frightful affliction has been sent to the insane asylum in Stockton. The shining hopes, the dreams of gold and walth, which enticed those who were far away to California, may have led more than one victim to insanity.”

    Three Years in America, 1859-1862; Volume I; by I.J. Benjamin, translated from the German by Charles Reznikoff; The Jewish Publication Society of America, Philadelphia, 1957, pg. 197.

  8. While there’s a wee bit of Schadenfreude watching California sell its soul in favor of bankrupting, nanny-state Leftists, I just wish their people would go somewhere other than Arizona.

    ~(Ä)~


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