Tag / Supreme Court

by Frank Maduri

Follow Up: Clean Power Plan, Supreme Court Ruling Explained

In a follow up to earlier stories on this topic, the United States Supreme Court ruled in a 5-4 decision last week to suspend the enforcement of the Clean Power Plan pending the resolution of all current legal challenges to the legislation. This decision is an obvious setback for President Obama and The White House who have invested a significant amount of resources and time in moving the Clean Power Plan forward through the legislative process.

 

The Administration was banking on this new legislation to grant the EPA expanded power to impose new regulations on existing coal plants in order to curtail the carbon emissions from these older energy producing sources. The Republicans in general, and conservative groups in particular have railed against this new legal authority for the EPA essentially framing it as economically detrimental for the middle class.

 

In my earlier pieces on this same subject, the focus was on the actual software and hardware that the Clean Power Plan would make mandatory for newly constructed coal plants to obtain in order to be compliant with the new federal government standards. These new technological and mechanical components would add significant cost to the energy companies in their project parameters for construction of new plants.

 

My earlier work focused on the fact that the energy companies (and their lobbyists) would push back hard against this proposed legislation, and that the impact would most likely be felt by the consumer because a portion of the costs to build the plants would be passed along to the average American in higher energy bills.

Retrofitting

 

The challenge presented by this new law was to retrofit existing power plants with new technology to help them to run more efficiently and release less carbon into the atmosphere. In this situation, no matter which side of this issue you favor, the fact remains that the emissions from power plants are the single largest contributor to carbon released into the atmosphere. The higher the carbon or carbon dioxide amount emitted into the atmosphere then the links to climate change can be drawn.

 

It is also not unexpected that this regulation would meet with challenges in the court system so The White House is looking at this decision by the Supreme Court as more procedural in nature until the other cases against the Clean Power Plan get resolved in the court system.

 

The environmental groups and the environmental lobby is understandably frustrated with the ruling by the highest court in the land on this issue, but the public relations releases for those groups show support and confidence that this plan will eventually move forward.

 

However, some of these groups were also quick to point out the impact of carbon emissions on the rising temperatures and the impact on various species of wildlife.

 

Paris Accord

 

The ruling on the Clean Power Plan will not have any impact on the plans for the measures being taken to comply with the historic Paris climate change agreement. The issues are seen as being separate and distinct.

 

It should also be noted that the ruling from the highest court in the nation does not translate to an immediate or future action that is prohibitive to the plan to implement cleaner technologies in America’s power plants. It does allow for the other legal challenges to move forward with regard to the Clean Power Plan which were largely anticipated by the Obama Administration already.

 

It is also important to understand that while some conservatives on Capitol Hill and the energy lobbyists and special interest groups are positioning this plan as a very negative one based mostly on economic factors (i.e. rising energy costs); the amount of litigation that they have filed in the court system is going to cost the American taxpayers a great deal of money too. However, you will notice how that topic is conveniently left out of the equation.

 

The Paris climate change pact that was agreed to recently will challenge the developed countries of this world to do more to reduce our carbon footprint, our consumption, and to enact measurable steps toward the protection of natural resources. I would like to think that those goals would be important to most people especially those with children who would want to have our planet protected for the generations to follow.

 

The legal process on the Clean Power Plan will play out and some elements of the Paris agreement will most certainly be challenged as well. In the end, we as citizens have to decide what side of this issue we are on. The Earth, and all of the natural resources we have been given by God to protect and be good stewards of hangs in the balance. I know I would prefer a world with clean air and clean water and less wasteful consumption patterns. I hope this article helps you to determine where you stand on this critical issue.

 

 

 

 

 

by Frank Maduri

TV Wars: Aveo Loses Supreme Court Decision – Follow Up

In a follow up to a previous piece I did on this blog entitled “TV Wars”, the Supreme Court ruled today that the service known as Aveo should be required to pay licensing fees to broadcasters in order to display copyrighted programming. Aveo is a service that transmits broadcasts of TV programming over the Internet via their technology, which subscribers pay a fee to utilize.

 

The argument from Aveo’s side was that their service did not broadcast the programming to everyone over the Internet that the programming was provided only to their subscribers, who paid a fee to receive the service. Since it is not a public broadcast, then they should not be required to pay the licensing fee. The argument continued that they merely rented a small broadcast antenna to each of their subscribers to access the copyrighted programming, which should not require that they (Aveo) pay a licensing fee to the broadcasters.

 

The Supreme Court disagreed, they ruled that the Aveo service was just like a cable television service, which under the current system, are required to pay licensing fees to broadcasters in order to display copyrighted programming. Therefore, Aveo will be required to pay licensing fees to the broadcasters, which they cannot afford to do.

 

It is important to note that if the Court had ruled in favor of the current setup of Aveo, it would have completely altered the landscape of the television industry. A favorable ruling for Aveo would most definitely trigger the major cable television players to develop Internet based antenna rental services similar to Aveo in order to circumnavigate the payment of licensing fees.

 

A favorable ruling for Aveo also would have created a situation where the network television broadcasters would stand to lose huge amounts of licensing fee revenues. It would have created an environment where many people would continue to cancel their cable television plans, known as “cord cutting”, which would have created losses of revenue for the big cable television service providers such as Comcast and Time Warner Cable.

 

Status Quo

 

Instead, the ruling today effectively retains the current system and most likely marks the end of the Aveo service. Their CEO essentially stated that the ruling makes their business model unviable moving forward. The technology that Aveo developed does have an inherent value, which the ownership of Aveo will have to determine if they are going to sell off to an interested party in the future.

 

The ruling today by the highest court in the land also purposefully went out of the way to create a distinguishable difference between the Aveo service and other Internet based entertainment providing services and cloud based services. It is unclear at this point if they went far enough to make that differentiation and only future judiciary activity will determine that scenario.

 

This portion of the ruling opinion of the high court would deal with only certain new technologies and not others that I had mentioned in my original article on this topic. The larger internet based entertainment programming services providers such as Netflix and Amazon already pay huge licensing fees to the broadcasters and movie production companies to obtain the rights to stream copyrighted programming to their subscribers.

 

Big Business

 

In fact, the recent agreement between Amazon and HBO which provides the Amazon Direct internet streaming service with the exclusive rights to a huge catalog of HBO produced series was a deal with significant impact for everyone involved. Those types of exclusive streaming rights deals will only continue in the future, as the popularity of services such as Netflix, Amazon, and now Google’s Fire TV will continue to increase their respective subscriber bases.

 

These types of exclusive rights deals with the big internet streaming services provide a huge injection of revenue dollars to the broadcasters and the networks involved such as HBO or CBS. In fact, CBS syndicates and produces so many different series across a variety of networks that their stock increased on the news of the favorable Supreme Court ruling today.

 

In my view, that is what I take away from the decision today by the Supreme Court that the consumer in some ways is the loser here too. The Aveo service, as the dissenting opinion of the Court explained, was not providing a public display of content rather the service was provided to subscribers. Therefore, the three dissenting and more conservative justices felt that the subscription fee negated the need for Aveo to pay licensing fees to the broadcasters.

 

The Dissent

 

I would tend to agree with the dissenting opinion, the Aveo service was providing the consumer with another option to view broadcast television programming. It was providing choice and fostering competition in the Internet subscription based entertainment space. This decision is going to dismantle Aveo, and in many ways destroys the very ingenuity and entrepreneurial spirit which America should espouse.

 

I think of all the time, money, and energy that the employees and developers at Aveo dedicated to designing and marketing their service, which is a unique technology, and I think the Court ruling sends the wrong message to the small business owner or the entrepreneur. This type of service should be promoted and not dismantled, other business owners could see this news today and decide not to move forward with a new product or an idea for a new service, and that can and will be detrimental to our collective best interest in American society.

 

However, it should also be noted that I am in no way in favor of a service that would infringe upon the copyright protections that these broadcasters and networks operate within. The networks and television broadcasting industry spends a significant amount of money on the production and the copyright legal protections for their programming. I am in no way promoting a service which would violate any copyrighted programming and broadcast these programs to a general public audience in violation of federal laws.

 

In relative terms, as a writer, if someone took my copyrighted written material and put it out into the general public in a way which misrepresented me and violated my rights that would be a huge issue. However, that was not the issue at hand here, because the subscription fee and the manner in which the programming was presented by Aveo with integrity made this case a difficult one for the judiciary system necessitating a ruling from the Supreme Court.

 

This decision effectively rewards the big broadcasting companies and eliminates a source of competition for the huge cable television operators. We should be fostering competition in the marketplace, yet between mergers and acquisitions and increased regulatory activity, the government is eliminating competition from our marketplace. This type of activity could prove ultimately detrimental, as we have seen in the course of history with monopolies in various industries in the past.

 

This ruling today is being reported by the media that it has moved the TV landscape into a state of clarity and removed some ambiguity. I disagree with that sentiment, I think the ruling today was only the beginning of another mountain of litigation driven by the broadcasters and networks and the groups which represent their collective interests with the goal of elimination of competition from the marketplace.

 

This ruling did not push our court system towards the end of the TV wars, in fact, I would argue, it is just the beginning.

 

 

(Some background information courtesy of Yahoo! News)

by Frank Maduri

Supreme Court Decision on EPA Clean Air Act: Follow Up

In a follow up story to a previous article I wrote on the regulation of greenhouse gas emissions by the Environmental Protection Agency (EPA) via the Clean Air Act the Supreme Court announced their ruling today. The Court ruled, in a close decision, to allow the EPA to continue to oversee the regulation of greenhouse gases particularly in the industry areas of energy and other industrial manufacturing.

 

The decision from the high court did place some limitations on the authority of the EPA, but for the most part, it upheld the notion that the EPA had the authority to regulate the air emissions policies relative to current and future proposed manufacturing plants.

 

In my initial article on this subject, the industry leaders in many segments related to energy and other industrial manufacturing groups were upset regarding the requirements instituted by the EPA relative to the construction of new coal plants and other energy generating facilities.

 

These groups maintained then, and their position has not changed despite the ruling today, that the EPA overreached their authority in interpreting the Clean Air Act and that the proposed limits on carbon dioxide emissions would require new technology which was cost prohibitive. They argued that only Congress, and not the EPA, had the authority to enact any such regulations on their business.

 

Furthermore, these industry groups asserted that these changes would result in a decrease in new coal plant construction and a net loss in jobs. They challenged the EPA in multiple lawsuits which were combined and heard as one case by the Supreme Court, which reached the final verdict earlier today.

 

Big Impact

 

The ruling today will have a big impact moving forward on the future of coal and other energy producing plants. The industry is looking at having to adapt and change their normal business practices, which will have a cost both in time and money to those respective manufacturers.

 

I had mentioned in my prior article that these energy producers may attempt to pass along the increase in the cost of these plant upgrades to the consumer. That would mean increased energy costs for many already cash-strapped American families.

 

The one section of today’s ruling where the Supreme Court provided some limitations to the EPA was with regard to the size of the industry types they could regulate within the confines of the Clean Air Act.

 

Initially, the EPA was seeking to regulate entities which emitted 100 – 250 tons of greenhouse gases and had to increase that amount to 75,000 – 100,000 tons of emissions in order to adequately address the issues with air quality. The Supreme Court decision today reinforced that methodology in their opinion the EPA does not have the authority to start mandating that business across a wide scale have to endure a permitting process.

 

In response to the assertion that the agency did not have the proper authority to require these changes to the policy, the Court wrote that, in essence, the EPA was acting in the best interests of Congress and the American people by regulating this area and saving the costs of creating a separate government program or regulatory entity to do so.

 

This decision has huge positive environmental protection ramifications because it provides the EPA with the authority to regulate the entities which contribute the most carbon emissions into our air. The effective management of these emissions will have a dramatic impact on the protection of the ozone layer and reverse the negative aspects of global warming and climate change.

 

The Future

 

The EPA, through the ruling today, will be able to regulate the entities responsible for 83 percent of greenhouse gas emissions in the United States. The industry groups involved and their representative interest groups are obviously unhappy with the decision today, and they will mobilize a concerted effort to file more legal suits and injunctions in an effort to reverse this decision.

 

In the end, whether you think the EPA overreached its authority or not, the vast emissions of huge amounts of carbon dioxide and other greenhouse gases has been linked in numerous scientific studies to have a negative effect on the quality of our air.

 

I also think that the government should look into some sort of cap on the amount the energy industry could potentially raise on rates to the consumer. I understand they have to maintain profitability, but it would be patently unfair to pass along a large percentage of the cost to the average American family based on these new potential regulatory requirements.

 

A government sanctioned regulatory process, whether it is via the EPA or Congress, was bound to be instituted based on the evidence at hand. I know I would like our children and future generations to be able to take a deep breath when they turn 30, and I think we all have a vested interest in having cleaner air. If you disagree with that sentiment, then this society has more problems than I initially thought we had.

 

(Statistics and some background information courtesy of The Washington Post and Associated Press)

 

 

by Frank Maduri

Follow Up: EPA Regulations on Power Plants

I recently covered the EPA ruling on the regulations for new power plants in order to curb the further emissions of greenhouse gases. This story was prevalent in the news again today with coverage by both The Associated Press and USA Today.

Those news agencies reported that the EPA ruling will be reviewed by The Supreme Court to determine whether or not the EPA has the authority to regulate the emissions of the power plants (www.ap.com).

 

The main issue is whether the 2007 Supreme Court ruling which allowed the EPA to regulate the emissions from automobiles under The Clean Air Act could be used to extend their authority to regulating the emissions from power plants (www.ap.com).

 

Both Sides

 

The environmental groups are downplaying the decision today by The Supreme Court to hear the case. They feel that the unanimous decision the EPA received supporting the regulation in the federal appeals court will help their position.

 

The EPA believes they have a strong case as well, reporting to the AP that they have the right to protect the general public from pollution within the scope of The Clean Air Act.

 

 

The environmental groups also point to the fact that the Supreme Court rejected calls to overturn the 2007 decision as a good indication that the Supreme Court is setting the boundaries of the argument by the energy industry into a very tight frame (www.ap.com).

 

Conversely, the energy industry feels that the decision by The Supreme Court to allow the case to be heard is a positive development in their cause. In my first article on this matter, I detailed the C.C.S. technology and the high cost it would require for implementation in a new power plant. In addition, the energy industry contends that the technology is unproven and they should not be required to implement it until it has been proven to be an effective technology.

 

The energy industry also feels that the Supreme Court could use this case to rule that the EPA has no right to regulate emissions from standing sources, such as power plants, at all (www.ap.com).

 

The Stakes

 

According to reports, the EPA was going to use the cap on emissions for new power plants as a measuring stick for extending regulations of emissions on other standing sources of pollution. The Supreme Court ruling could either greatly enhance the EPA in this process, or greatly inhibit the EPA moving forward in that regard.

 

The AP reported that President Obama was giving the EPA a year to come up with standards for emissions on existing power plants. Subsequently, the Court decision could have drastic ramifications on that process as well. If it rules against the EPA, then they will have a tough legal battle trying to regulate existing power plants.

 

The energy industry has a great deal at stake here as well. If they lose their case, they obviously cannot appeal it any further, and it would have to follow the EPA regulations in any new plants by installing the C.C.S. system.

 

Moreover, they would be faced with certain new regulations on the existing power plants and the emissions from those facilities. Other standing sources of pollution would face similar regulations by the EPA, except this time it would be backed by Supreme Court precedent and The Clean Air Act.

 

These regulations, as I detailed in my earlier article, would have an impact on the American consumer, as it would drive up the cost of energy.

 

Environmental Implications

 

The environmental implications are very steep here as well. The evidence is there to suggest a link between greenhouse gas emissions, particularly of carbon dioxide, and climate change.

 

All of these other implications aside, we have a responsibility to our environment and we need to be much more effective at lowering carbon emissions and other pollutants. We need to protect our planet for future generations. It goes beyond the courts, the costs, and the designation of the role of government.

 

This issue is an issue of humanity, a question of:  what kind of conditions in our environment do we want for our children and our grandchildren? That is a big question, one which will transcend this case and needs to be a part of a much deeper conversation.