Power strip: SCOTUS’s environmental ruling

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Hello and welcome to the Intelligence from the Economist. In London, I'm Jason Palmer.

And in New York, I'm John Fassman. Every weekday we provide a fresh perspective on the events shaping your world.

There's not much left of Hong Kong's democracy. On the anniversary of the city's handover to China, we look at the techniques the mainland government has used to throttle dissent and why the rest of the world should be on the lookout for them.

And in much of the west, mustaches have been rather in decline since the days of Tom Selleck and Burt Reynolds. But in Iraq, they've long been a symbol of authority and machismo and they're making a comeback.

First up, though, It's been a busy end of term for America's Supreme Court, which in the space of a week has issued rulings on some of the most fundamental and livewire issues in the country. Concealed weapons, abortion, the rights that are read to people being arrested. But yesterday's ruling about the scope of the power held by America's environmental regulator has troubling implications far beyond the country's borders.

What the Supreme Court was asked to look at is this question of whether or not a federal agency, in this case the Environmental Protection Agency, had the authority to issue system wide, so country wide regulations that would impose caps on power stations.

Katrine Braeck is our environment editor.

These are regulations that would encourage the entire power generation system of the United States to, to shift away from dirty fossil fuels and in particular to shift away from coal and to move towards greener sources such as solar and wind. And the context is that 15 years ago, a very differently structured Supreme Court, in a different case known as Massachusetts vs EPA, ruled that basically because greenhouse gas emissions present a danger to human health, that it was within the EPA's remit to regulate them. Yesterday, the Supreme Court restricted its ability to do so, and specifically it restricted its ability to regulate emissions from existing power plants.

And what does that mean then for policy In America, this is a sort of defining the line of who has what authority, how will that be implemented?

The power sector in America is responsible for 25% of greenhouse gas emissions. It's one of the most polluting sectors, not just in America, but actually in the world. And so if President Biden is going to be hitting his climate targets, and in particular he has promised to cut greenhouse gas emissions nationwide by 50 to 52% by 2030 relative to 2005 levels. If he's going to do that, he basically needs to be using all the tools that are available to him, and one of them is regulating the power sector. So the Supreme Court yesterday said that the EPA can regulate emissions from power stations, but it can only impose regulations within what's known as a fence line. And what this means is that when the agency is drawing up its emissions guidelines for existing power plants, it needs to assume that a coal fired power plant will remain a coal fired power plant. It can't draw up guidelines that require a shift towards renewables. Obviously, if you're leading a country that is a major emitter, then what you want to be able to do is issue these much more systemic wide regulations that are going to have and national impact.

You say that's just one of the tools though, that he had at his disposal to meet those targets.

The power sector is just one source of greenhouse gas emissions. It's a very important source of emissions. But there are others he can regulate transport, building, etc. And there are also tools that he has at his disposal that can have similar impacts to regulating the power sector as a whole. But the thing is that regulating the power sector nationwide, the ability to nudge it towards renewables was basically one of the tools in his toolbox that would have the greatest impact. It's not the only one, and there are others, but this just puts a lot more emphasis on everything else falling into place.

But making these kinds of decisions, regulating these kinds of things seems pretty basic to the whole mission of the epa.

What Chief Justice Roberts wrote in his opinion was that the Clean Air act doesn't give the EPA the authority to issue these system wide regulations on its own. And, and in fact, in order to do so, Congress has to instruct it very clearly on the types of regulations that are admissible. The problem here is that we have a very divided Congress on the issue of climate change. It hasn't actually issued any major laws relating to climate change in decades. And so by bouncing this back to Congress, in effect, what you're doing is you're just further entrenching this bipartisan division and the impacts of the bipartisan division.

So what does that then mean for efforts to tackle climate change more broadly?

We're talking about the world's second largest emitter here. America has a symbolic importance in terms of historically it's really flip flopped on its climate change policy. So Biden really has an uphill struggle ahead of him. The whole climate agenda at the minute feels like it's very much hampered by all events worldwide. Whether we're talking about the energy crisis, whether we're talking about the impacts of the war on the pre existing energy crisis. We're in a place right now where action on climate change is urgent, is at a crisis level. This was acknowledged in COP26. Politicians were meant to have 12 months to respond to that crisis level and up the ante nationally. And instead it just feels like all the dominoes are stacking against that. It's not a very encouraging position to be in six months away from the next climate summit.

Katrine, thanks very much for your time.

Thank you, Jason.

This case was about the environment, but it could have much wider implications, radically changing the way regulation works in America. We asked our Supreme Court correspondent Steven Mazzy to explain how it came about.

It has taken seven years to get to this point. And the slightly odd thing is that this case is a challenge to regulations that do not exist. So let's back up to 2015. Barack Obama is president. He wants to show leadership in tackling climate change in the hopes that other major polluting countries would follow suit. One of America's governors has said we're the first generation to feel the impact of climate change and the last generation that can do something about it. And that's why I committed the United States to leading the world on this challenge. The EPA under Obama comes up with something called the Clean Power Plan, which immediately faces a sheaf of lawsuits. And the Supreme Court puts it on hold in 2016. Three years later, in 2019, Donald Trump is now president. He replaces Obama's regime with a significantly watered down plan known as the Affordable Clean Energy Rule. My administration is putting an end to the war on coal. Gonna have clean coal, really clean coal. This rule in turn faces judicial resistance. And the Court of Appeals for the District of Columbia Circuit unwinds Trump's cancellation of Obama's Clean Power Plan on Trump's last day in office in January 2021. So that handed the controls to Joe Biden. But the new administration decided not to revive the Clean Power Plan because the Emissions targets under that plan had already been met, even though it never went into effect. So instead, the epa under Biden has been developing a replacement and plans to have a new proposed set of rules ready by the end of 2022. So to sum up, the regulation at the heart of this case was basically dead, but the Supreme Court in effect, resuscitated it just enough to allow the legal challenge to proceed. This surprised a lot of people, and it's at the heart of a wider dispute about the current approach to regulation in America and something called the Chevron Deference Doctrine.

And what's that about?

It's named after a case, Chevron USA vs Natural Resources Defense Council that was decided by the Supreme Court in 1984. And Chevron says that if a statute is silent or ambiguous on a question, the courts should defer to an executive agency's interpretation of it, as long as that interpretation is reasonable. So what this means is that federal rules of all kinds are written in response to broad directives from Congress to say, protect air quality or worker safety, and it's up to the agencies to work out the details. This way of doing business is vital to how regulations and the entire administrative state works. It allows agencies to make or update rules in response to fast changing circumstances, for example, during a pandemic, without needing to go back to Congress and ask it to rewrite a law or to legislate anew.

But that ethos, that way of regulating now seems to be in question.

It does seem to be under threat. There are two main doctrinal challenges. First. Well, some legal scholars and jurists argue that America's founders did not intend for Congress to delegate too much power to executive agencies. This is the so called non delegation doctrine. So that's the first broadly threatening notion for federal agencies, but did not figure into the EPA case this week nearly as much as another idea, something called the Major Questions doctrine. The Major Questions doctrine requires Congress to specifically authorize new policies or regulations that have significant economic or political consequences, even when the language of a statute gives the agency broad power. So in this latest case, the question boils down to whether Congress has specifically and explicitly told the EPA that it can create a program that reconfigures the energy sector and that has substantial effects on the American economy. And by a 6 to 3 vote, the court said Congress has done no such thing, and so the EPA may do no such thing.

So what to make of this ruling then? What does it tell us about the ideological leaning of the current court?

I think just the fact that the court took this case says a lot about how strong an appetite it has to rein in the administrative state. Ordinarily, the Supreme Court only weighs in on live cases or controversies. Here they ruled on a system of rules that is not in place, was never in place, and which the Biden administration says it has no intention of putting into place place. But as Justice Kagan said in dissent, the court's docket is discretionary. It didn't have to take this case. There was no reason to reach out and decide it. She says the ruling is really an advisory opinion on the proper scope of the new rule the EPA is considering. She writes. This court could not wait even to see what the new rule says. It just had to constrain the EPA's efforts to address climate change. Now, that image of the court kind of chopping at the bit is essential to our understanding of how this came out. West Virginia vs EPA does not by itself transfer loads of power from the executive to the judicial branch, but it is a sign of how the new conservative majority wants to move at a good clip in that direction.

Stephen, thanks very much for joining us.

Thank you, Jason.

The restriction of the EPA's powers is just one way that the Supreme Court's conservative supermajority has acted rapidly to reshape multiple facets of American life. But public confidence in the court is waning. Stephen will be back later today on our American Politics podcast, Checks and Balance, to explore whether the court is playing too big a role. Look for Checks and Balance wherever good podcast benches are packed. 25 years ago today, Britain handed Hong Kong back to China. To mark the anniversary, President Xi Jinping has been visiting the city, his first trip outside the mainland since the start of the pandemic. With the full support of the motherland, Mr. Xi said the practice of one country, two systems had been successful. That idea to let Hong Kong's democracy flourish, to let the city be a gateway to the west from the mainland and vice versa, worked for a while. But in recent years that model has moved relentlessly closer to the one employed by Mr. Hsi on the the mainland.

Today's Hong Kong is really different from the place that was handed back by Britain to China in 1997.

Su Lin Wong is our China correspondent.

At the handover, the last British governor, Chris Padden, honoured the rich fabric of Hong Kong.

No dependent territory has been left more prosperous professions, churches, newspapers, charities, civil servants of the highest probity and the most steadfast commitment to the public good.

At the time, China promised that for at least 50 years, Hong Kong would remain a free and open city. But just halfway through that promise, China has turned Hong Kong into a police state.

And we have talked a lot on the show about the various moves that have led to that. But let's take a step back here. What's the big picture? How has it done done so?

By far, its biggest tool has been imposing a National Security Law on Hong Kong. Nearly 200 people have been arrested under it. There's a presumption against bail. Almost every prominent democrat in the city is now either in jail or in exile. There's a new National Security Committee, modeled on its counterpart in Mainland China, that now sits above the rest of the Hong Kong government. The city's police budget has ballooned by almost 50% over the past five years. And today an ex policeman and security chief, John Lee, is being sworn in as chief executive of the city. And this is going to be the very first time that the leader of Hong Kong comes from the security services. So he is widely loathed in the city, but was selected from a group of one and is the party's pick. Speaking this week, he talked about a new chapter for Hong Kong. He talked about trying to bring Hong Kong and Mainland China closer together and hoping that this would all happen with the motherland at our back.

You say that the biggest piece of the puzzle here is the National Security Law, and we've talked about that at some length. How has that been playing?

Well, we've seen the authorities use the National Security Law to intimidate the really outspoken members of Hong Kong society. And that's why we've seen people thrown in jail or arrested. But in fact, what is more insidious is that there's now a culture of fear that has enveloped the whole city. And so I've spoken to many teachers and lawyers and professionals who all say that now everyone just self censors because they know that there is this National Security Law hanging over them, and they could, if they said the wrong thing, be caught up in it.

But as all this change has been taking place, there has been at various points, a real protest spirit in Hong Kong. Things got really quite tense a couple of years ago. What's happened to that protest spirit?

It's really shocking to think about how quickly that protest spirit has been crushed and, and the ways that the Communist Party did so. So obviously its biggest tool has been this National Security Law. But in fact, they have used a bunch of other strategies as well. And so since the handover, more than 1 million mainlanders have migrated to Hong Kong. And in fact, this scheme of migration was also used by the Chinese government to secretly send tens of thousands of mainland Chinese officials to to Hong Kong and eventually rise up through the civil service, into key positions in Hong Kong's police, immigration, customs. So by the time China imposed this security law on Hong Kong, there was no doubt about the loyalty of the security apparatus in the city. And so that has been a really, really important element of how China has crushed Hong Kong.

But you've hinted at the idea that it's not just a sort of infiltration of the security systems, the mechanism of the state that's at work here.

That's right. So another tactic that the Chinese Communist Party used was co option. And so for decades, they've been cultivating business people, academics, think tank types, pro democracy politicians. I interviewed a bunch of former pro democracy lawmakers who now live in exile. And they said since the 1980s, the Communist Party would wine and dine them, offer them money, women, power, whatever they wanted if they did as the party told them to. And another really important group that the party targeted were academics. So one person I interviewed, Dr. Chum Kim Wah, he was a social scientist and when he retired, started helping out with public opinion polling in Hong Kong. But even public opinion polling has become sensitive. And so in April, he had to flee to the United Kingdom, someone who.

Was close to the pro establishment. He told me that you are regarded as someone who is not obedient enough, so you will be in trouble. Of course, I took that as a signal and later he sent me another message. Ask me, would you consider leaving Hong Kong for a while to take a rest?

We've seen tens of thousands of Hong Kongers move, mostly to the United Kingdom, Canada, Australia, Taiwan.

So is that to say that the protest spirit that once was centered in Hong Kong is now just simply outside it?

Given the party has so brutally cracked down on protests inside the city, that sort of sense of Hong Kong identity and that spirit of fighting is much more likely to live on amongst the diaspora that is now scattered around the world. I also spoke to Anna Kwok, who was a young activist in 2019 when millions of Hong Kongers took to the streets.

Protect Hong Kong.

Protect Hong Kong.

Protect human rights.

She was very, very involved in the protests then.

I was definitely very angry, like, how dare you do something like that? Before 2047, when we were supposed to still have our autonomy, always in the back of my mind, I was always so concerned that, how long is this going to last? And if the government decides to use violence, or if the government decides to push hard on us, to silence us, are people going to fight back?

But she's now had to go into exile and continue fighting from America.

So you've painted a relatively hopeless picture here for Hong Kong. Is this, do you think, halfway through this period already the end of the one country, two systems notion?

Yeah, I think one country, two systems is dead. And I think there's a feeling among some people that, you know, the Hong Kong story is over. Hong Kong has been crushed by China. But in fact, what happened to Hong Kong matters for all of us because the strategies the party used on Hong Kong are now strategies that it's trying to use in the rest of the world. So strategies like infiltration, co option, the use of fear and intimidation to induce self censorship. And I think one thing we really have to be alert for is how the Party tries to get businesses to do what it wants. And this is something that I discussed with Anna Kwok.

The world should realize first that even though things may seem to be happening just locally in Hong Kong, actually they are also trying to use their economic influence as a leverage to control what people in the free world can say or cannot say.

And as we increasingly become reliant on Chinese semiconductors, batteries, solar panels, wind turbines, everything, we just need to be very aware of the tactics of the party.

And Su Lin, I know you've gone much more deeply into the history of the handover and what's happened since on our sister show, the Economist asks.

Yeah, and in the show, we spoke to two people who really deeply understand Hong Kong. Chris Padden, the last British governor of the city and his reflections 25 years after he oversaw the official handover, as well as Nathan Law, who remains one of the faces of Hong Kong's democracy movement, even though he's now in exile in the uk.

Su Lin, thank you very much for joining us.

Thanks very much, Jason.

During the 21st century, Iraq has experienced dictatorship, a foreign invasion and a war on insurgency. These days, though, the country is going through a period of relative stability, and a sign of that is one particular aspect of male grooming.

Iraqi men take a lot of pride in their facial hair, including mustaches.

Elise Burr writes about foreign affairs for the Economist.

For a lot of them, mustaches are a sign of machismo and authority. For example, Saddam Hussein famously had a thick black mustache that was quite similar to Stalin's. Threatening to shave off another man's mustache is an insult. Prison guards will normally shave prisoners to humiliate them but there have been points in the past two decades where mustaches have become less popular.

And why is that?

So?

During periods of extreme violence, Iraqi men will often change their hair or their facial hair for safety reasons, because they can indicate your job, your religiosity, and your section. So, for example, a neat mustache can be a sign that you work for the army or intelligence services. And a big, bushy, droopy mustache is a trademark that you are a member of the Kaka', iz, which is a minority sect that has been deemed heretical by the Islamic State. So their mustaches really made them a target for Islamic State assassinations. But recently, the country has been enjoying more stability. So it seems to me that the mustache is making a little bit of a comeback.

So more security equals more mustaches, I think so.

I spoke with one officer in the army, and he told me he reckons that 80% of his fellow officers have a mustache just like him. And he told me that if the security situation deteriorated and officers started getting targeted, that he would shave off his mustache.

Does other facial hair, like beards, have similar status in Iraq?

Yeah, beards can symbolize a lot. They're also really charged. So when Islamic State ruled a chunk of Iraq from 2014 to 2017, they forced all the men under their control to grow beards. And some people were tortured or killed for refusing to do so. Beards can also play into other fault lines. For example, there's a group of mostly Shia militias in Iraq known as Hashid Al Shaabi, and they played a big role in vanquishing Islamic State. And the government has since tried to integrate them into the army and bring them under government control. But one sign that that has failed has been because Hashar Al Shaabi members often grow beards, where if you are a full fledged member of the Iraqi army, you're not allowed to grow a beard.

Is all of this true among younger Iraqi men as well, or is this a generational split?

It seems to me like a lot of young men are less keen to emulate the facial hair of their fathers and grandfathers. Outlandish, stiffly gelled hairdos are becoming quite popular. But I think this is a really good sign. If you're ditching the mustache for reasons of style rather than safety, that shows that Iraq is becoming a little bit more normal.

All right, Elise, thanks so much for joining us today.

Thanks for having me, John.

That's all for this episode of the Intelligence. The show's editors are Marguerite Howell and Chris Impey. Our senior producers are Sam Westrin Jack Gill and Jon Joe Devlin. Stevie Hertz is our US Audio correspondent and our creative producer is William Warren. Our producers are Rory Galloway and Alize Jean Baptiste and assistant producer Avesoy Ocean Dairo, with extra production help this week by Emily Elias. Our sound engineer is Will Rowe with help this week from Timo Sila. We'll all see you back here on Monday.