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Monday, December 09, 2019 {{ new Date().getDay() }}

By Michael Doyle, McClatchy Washington Bureau

WASHINGTON — The Supreme Court seemed split down the middle Monday, and occasionally lost in the fog, as the justices confronted a challenge to the Obama administration’s greenhouse gas regulations.

Conservatives, including the court’s frequent swing vote, Justice Anthony Kennedy, periodically shared the skepticism of Texas Solicitor General Jonathan Mitchell, one of two attorneys arguing against the Environmental Protection Agency’s greenhouse gas rules.

“I couldn’t find a single precedent that strongly supports your position,” Kennedy bluntly told U.S. Solicitor General Donald Verrilli Jr., who was representing the EPA regulators.

Coming at the end of an unusually long oral argument of nearly 100 minutes, Kennedy’s flat-out declaration, combined with justices’ earlier questions and remarks, suggested an eventual ruling against the EPA, perhaps along familiar 5-4 lines. Chief Justice John Roberts Jr. and, more emphatically, Justices Antonin Scalia and Samuel Alito also sounded skeptical about the agency’s greenhouse gas actions that are being challenged.

The court’s four Democratic appointees were more sympathetic to the EPA rules, which included revising specific emission standards spelled out by Congress.

“Why shouldn’t we defer to the agency?” Justice Sonia Sotomayor asked.

Sotomayor’s question reached the heart of the legal matter argued Monday, and hinted at the potential political fallout. Those challenging the EPA’s regulations argue, in part, that executive branch officials overstepped their bounds in interpreting a law passed by Congress. An eventual ruling against the EPA might fuel Republican critics who already contend that the Obama administration too often acts unilaterally.

“The optics of this case are as equally important as the law,” William J. Snape III, a fellow and practitioner in residence at American University’s Washington College of Law, said after the argument.

The frequently technical argument Monday, though, also made clear that the EPA will retain the ability to regulate greenhouse gases from stationary and mobile emission sources even if the court strikes down the regulations in question. Justices showed little interest in reversing a 2007 high court ruling that first declared the EPA had the authority under the Clean Air Act to regulate greenhouse gas emissions.

Mitchell, in a legal brief filed on behalf of Texas and other states, had initially floated the possibility that the Supreme Court might overturn the earlier decision. The idea was essentially ignored Monday.

“I was in the dissent in that case,” Roberts noted, “but we still can’t do that.”

Using Clean Air Act provisions that aren’t being challenged before the Supreme Court, the EPA by some estimates will still be able to regulate 83 percent of greenhouse gas emissions. Verrilli acknowledged Monday that the regulations being challenged will increase this only to about 86 percent.

The regulations challenged Monday stem from a particular part of the Clean Air Act. The law sets 100 or 250 tons per year, depending on the source, as the pollutant emissions threshold for when “Prevention of Significant Deterioration” permits are needed. For greenhouse gas emissions, which result from many sources, the EPA changed this to a more lenient 100,000 tons per year.

Conservatives objected, even though the less onerous standard imposed a smaller burden on industry. Regulators, the critics say, shouldn’t unilaterally rewrite congressional work.

AFP Photo/Saul Loeb

White House press secretary Kayleigh McEnany

White House Press Secretary Kayleigh McEnany was forced to defend President Donald Trump's recent attacks on MSNBC host Joe Scarborough on Tuesday, an unenviable task she nevertheless intentionally signed up for. She desperately tried to divert the attention back to Scarborough — without engaging in the president's conspiracy theorizing — but offered no credible defense of the president's conduct.

Trump has been spreading the debunked theory that Scarborough killed a staffer in 2001 while he was in Congress, even though it was determined she died of natural causes. The staffer's widower wrote a released a letter on Tuesday pleading with Twitter to take down the president's offensive tweets promoting the thoery. He said he was "angry," "frustrated," and "grieved" by the president's promotion of the harmful allegations. Trump is perverting his late wife's memory, he said, and he fears her niece and nephews will encounter these attacks.When asked about the letter, McEnany said she wasn't sure if the president had seen it. But she said their "hearts" are with the woman's family "at this time." It was a deeply ironic comment because the only particularly traumatizing thing about "this time" for the family is the president's attacks, which come nearly two decades after the woman's death.

McEnany refused to offer any explanation of Trump's comments and instead redirected reporters to a clip of Scarborough on Don Imus's radio show in 2003. In that show, Imus made a tasteless joke obliquely referring to the death, and Scarborough laughed at it briefly.

"Why is the president making these unfounded allegations?" asked ABC News' Jonathan Karl. "I mean, this is pretty nuts, isn't it? The president is accusing someone of possible murder. The family is pleading with the president to please stop unfounded conspiracy theories. Why is he doing it?""The president said this morning, this is not an original Trump thought. And it is not," she said, bringing up the Imus clip. But she made no mention of why the president is bringing up the issue 17 years later and with a much larger platform.

When pressed further on the president's conduct, she again diverted blame to Scarborough, saying his morning show unfairly criticizes the president. But again, she offered no substantive defense of Trump.

After McEnany had moved on, PBS reporter Yamiche Alcindor brought it up again: "Why won't the president give this widower peace and stop tweeting about the conspiracy theory involving his wife?"

McEnany said she had already answered the question, which she hadn't, and said the onus is on Scarborough to explain the Imus clip."The widower is talking specifically about the president!" Alcindor shot back. But McEnany called on Chanel Rion, with the aggressively pro-Trump outlet OAN, who changed the subject to conspiracy theories about the origins of the Russia investigation.

"Are you not going to answer that?" Alcindor called out, still trying to get a substantive response to her question, but Rion spoke over her.

At the end of the briefing, another reporter asked whether Trump was looking for any actual law enforcement steps be taken in response to his conspiracy theory. But McEnany had nothing to add, and simply told people to listen to the Imus clip again. As she hurried out of the briefing room, a reporter asked if Trump would stop promoting the theory — but she left without answering.

Watch the exchange about Klausutis, which begins at 48:45.