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As the Kamala Harris momentum rolls through Biglaw, the folks at conservative stalwart Jones Day decided to get in on the action, showing they’re just as “hip” and “groovy” as the youths by spicing up their latest emergency petition to the Supreme Court with some timely Kamala meme rhetoric.
It was, as this generation might actually say, quite cringe.
Pictured below: The reaction of Chief Justice Roberts reading this brief (as Jones Day imagines it).
The case, NACCO Natural Resources Corporation v. EPA, involves the agency’s carbon capture and sequestration rule requiring industry to deploy this “adequately demonstrated” technology to achieve 90 percent emissions reductions in the 2030s. Jones Day, representing NACCO, is arguing that the technology isn’t adequately demonstrated because it’s not being used commercially now. Which is like saying the government couldn’t require airbags because the commercial car manufacturers weren’t installing them before.
So the cheeky yet timely “what can be unburdened by what has been” isn’t as much an insult as an accurate description of how regulations work: something safer/cleaner/less fraudulent comes along, no one uses it because first-adopters would be economically disadvantaged, that’s why the agency issues a uniform regulation so the market can implement the new technology. If the test depended on existing commercial adoption, nothing would get done because the sad sack who moves first get eaten alive by competitors.
This all comes back to the Supreme Court’s Loper Bright opinion — which naturally makes an appearance in this petition — where the Court jettisoned Chevron deference and declared that the courts are better than food scientists at figuring out how much rat poison should be in hot dogs. Now it’s the EPA’s turn to be told that its scientists can’t evaluate technology as well as septuagenarians taking private plane rides from billionaires.
Consequently, as Loper Bright’s author, John Roberts will probably give them everything they want. But my guess is he’s not going to be too impressed that the firm tried to milk this coconut for the LOLZ.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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