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Editorial: New Senate rule could help us breathe easier

The air that you and every other New Englander breathes would be a bit cleaner if not for the U.S. Court of Appeals, District of Columbia Circuit, the court second in power only to the U.S. Supreme Court. Had that court’s decision on a rule requiring coal plants to curb emissions that descend on other states gone the other way, thousands of people downwind of the Midwest’s old coal plants might still be alive, according to the EPA. And that, in part, is why Senate Democrats, at long last, chose to exercise “the nuclear option,” terminating the Senate rule that required 60 votes to end a filibuster. Though it could come back to haunt them, they did what they had to do to save the Senate, prevent tyranny by the minority and protect public health.

Cases in the D.C. circuit are heard by a three-judge panel chosen at random from a court that, at full strength, should have 11 members. It instead has eight, split evenly between Republican and Democratic appointees. They are assisted in their labors by six retired justices, five of whom are Republican appointees. The court, which rules on the legality of federal regulations, thus skews to the right, which is precisely why GOP senators used the filibuster rule to prevent any of President Obama’s nominees to it from being seated. The 2011 federal clean air case that was the subject of yesterday’s editorial and today’s hearing in the U.S. Supreme Court was a split decision. Two appointees of George W. Bush voted to reject the EPA’s rule; one, a Bill Clinton appointee, voted to uphold it.

The issues now under consideration by the Supreme Court are complicated. They concern appropriate areas of authority, the meaning of the term “substantial impact” in “good neighbor” legislation designed to curb cross-border pollution, and the ability to ascribe an accurate share of each state’s blame. But that’s not what the dispute is about, in its broadest sense. It is, instead, a battle over a Republican desire for minimal federal regulation, maximum latitude for corporations, and state over federal policy.

The D.C. Circuit rules, as the Washington Post said recently, on “rules for credit card fees, precautions at meat plants and whether companies must deliver pensions promised to their workers.” It is where much of Congress and the executive branch’s ability to make law and govern is decided.

Yesterday, as the Supreme Court heard arguments in the “good neighbor rule” case, the Senate voted on the long-filibustered nomination of Washington attorney Patricia Millett to the D.C. court. She is one of three eminently qualified nominees whose confirmations to that court have been filibustered. Presumably, votes will be held soon on the other two nominees. Should Republicans win control of the Senate, Democrats may come to rue their inability to use the filibuster to block nominees they believe have extreme views. No one knows whether that will happen or whether the Republican Party will continue to be in thrall to its ultraconservative wing. But in the meantime, the D.C. Court of Appeals will take up another case with profound implications for the health and well-being of New Hampshire and its environment.

The case is White Stallion Energy LLC et al. v. EPA. White Stallion is an energy company that plans to build a huge coal and petroleum coke-fired power plant in Texas. The company is challenging EPA rules that limit mercury pollution from power plants. Airborne mercury, much of it from dirty coal plants in the Midwest and Texas, is one big reason why it’s unwise to eat too many fish pulled from New Hampshire’s lakes. New England, in concert with its Canadian neighbors, has made a major effort to reduce the mercury emissions from its power plants, incinerators and other sources. Midwestern power plants have not, but that could change because Senate Democrats killed the filibuster.

When a simple majority votes to change the rules..there are no rules.

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