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Germany reports highest number of new coronavirus infections since April

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A man has escaped coronavirus quarantine in South Korea by digging a hole underneath a temporary wall at a government facility in Seoul, according to health authorities.

Health official Son Young-rae said Wednesday that the man, an Indonesian sailor, entered the country on a seafarers’ visa and began his quarantine on September 21.

He was due to be released on October 5, but dug his way out of the facility the day before.

According to Son, the man’s Covid-19 test result was negative when he entered the country and he didn’t show any symptoms of coronavirus.

Police are still searching for the man and analyzing CCTV footage. Since the incident, additional CCTV cameras have been installed at the quarantine facility and more police officers have been dispatched to the center, Son said.

Foreigners who arrive in South Korea must quarantine at a state facility for 14 days unless they are residents of the country.

The situation in South Korea: On Wednesday, authorities reported 114 new coronavirus infections nationwide, of which 94 cases were locally transmitted and 20 imported.

The total number of confirmed cases for the country stands at 24,353, including 425 deaths.

South Korea is experiencing a fresh wave of cases, prompting authorities to restrict gatherings.

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84 Michigan schools report new Covid-19 cases

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Drew Angerer/Getty Images
Drew Angerer/Getty Images

It is growing increasingly likely that passing any stimulus deal through Congress will have to wait until after the Nov. 3 elections, according to multiple sources in both parties.

While it’s possible a deal in principle between the White House and House Democrats can be reached before Nov. 3, passing a bill through both chambers is highly unlikely before then.

That’s because of the sharp disagreements within the GOP, the logistical hurdles of passing legislation quickly of this magnitude through both chambers and the fact that Speaker Pelosi and Treasury Secretary Steven Mnuchin still have many outstanding details to sort through.

Pelosi has not yet told her colleagues if she’ll bring the House back to session next week to vote on the stimulus, sources said. So it’s still possible the House could return next week just days before the election.

But the Senate is likely to adjourn after Monday when Amy Coney Barrett is confirmed to the Supreme Court, though the final schedule has not yet been announced.

After Pelosi and Mnuchin blew past the speaker’s self-imposed Tuesday deadline, which she said was essential to getting a bill passed by the elections, she also subtly adjusted her language.

“I remain hopeful that we can reach an agreement before the election,” Pelosi said in a letter to her colleagues last night.

What could come next: Reaching an agreement, of course, is different than passing a bill. Plus Senate Majority Leader Mitch McConnell has no appetite to put a major stimulus bill on the floor that will divide his party just days before the election, something he reiterated to his colleagues at lunch on Tuesday. The Senate GOP is largely opposed to a bill around $2 trillion, which Pelosi and Mnuchin are discussing, as Republicans try to advance their $500 billion bill this afternoon after Senate Democrats blocked it last month.

What Pelosi really wants is to clear the decks and pass a major bill to help Joe Biden if he wins the presidency, sources familiar with her thinking said, meaning that final passage could wait until after the November elections and before January during the lame-duck session.

Still, it’s anyone’s guess how the outcome of the elections could scramble the political calculations of the White House, Senate Republicans and Democrats as well — adding uncertainty to how action in a lame-duck session would play out.

Speaking on CNN’s “Newsroom” this morning, House Majority Whip Jim Clyburn suggested that lame-duck action is more likely at this point.

“The election is less than two weeks away, and I believe we will be back in Washington a week or two after the elections and we could something then,” Clyburn said. “At least the elections will be behind us, people will know what their futures are and maybe they will be more apt to sit down and get serious about things after their electoral prospects have been settled.”

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Brazil’s president slams vaccine his health ministry plans to buy

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Brazilian President Jair Bolsonaro took to social media to slam the Chinese-made vaccine that his health ministry had agreed to purchase only hours before.

Brazil’s health minister Eduardo Pazuello — the third person to hold the job this year during the coronavirus pandemic — is in hot water with President Jair Bolsonaro.

Bolsonaro took to social media to disavow his minister on Wednesday after a flurry of negative comments from his supporters opposing the purchase of the Coronavac vaccine being developed by China’s Sinovac Biotech Ltd. The deal to purchase the vaccine to be distributed nationwide was announced the previous day by the Health Ministry in conjunction with the state of Sao Paulo whose Butantan Institute is working with Sinovac.

“The Brazilian people WON’T BE ANYONE’S GUINEA PIG,” the President wrote on his Facebook and Twitter pages, adding that billions can’t be spent on medication that is still being tested. “My decision is to not acquire the aforementioned vaccine.”

Calling it “Joao Doria’s Chinese vaccine,” in reference to the Sao Paulo governor, Bolsonaro said his government won’t buy any vaccine before the Health Ministry and regulator Anvisa approve it. Doria, a former ally turned rival, has been promoting the work with the Chinese firm.

Following a meeting with Doria, Pazuello said the government had signed a preliminary agreement to acquire 46 million doses of the Butantan-Sinovac vaccine. The purchase would only be made after regulator Anvisa had approved the medication, according to a statement.

Doria responded to Bolsonaro by asking for greater comprehension about the medication and asking him not to take it out on the minister. Two of Bolsonaro’s health ministers exited this year over disagreements on his handling of the pandemic including lockdown measures and the use of unproven treatments.

Doria and Bolsonaro have publicly bickered about everything from social distancing to the use of face masks and whether vaccines should be obligatory or not throughout the tumultuous year. Municipal elections next month have added more tension to the public debate.

Earlier this week, the Sao Paulo government said that the phase 3 trial for Coronavac had shown the vaccine was the safest available thus-far, though its efficacy still needs to be proven.

The federal government has already agreed to buy the vaccines being developed by AstraZeneca and Covax, for a total of 186 million doses. Brazil has been one of the hardest-hit countries by the virus, with about 5.3 million confirmed cases and 154,837 deaths from the respiratory disease.

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What Amy Coney Barrett’s confirmation will mean for environmental law and Joe Biden’s climate plan

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Amy Coney Barrett’s likely confirmation to the Supreme Court to replace the late Ruth Bader Ginsburg in a Monday Senate vote will add a conservative sixth vote to an already-conservative majority, with potentially far-reaching implications for American law. Barrett’s confirmation will scramble the current distribution of power on the Court, displacing the chief justice as its putative center and pulling it rightward.

Most legal commentators expect that Barrett’s judicial philosophy of originalism and her advocacy of a more “flexible” approach to precedent will make her more likely to vote to overturn precedents like Roe v. Wade. Barrett also believes that judges should interpret statutes in accord with their “original public meaning,” a strict brand of textualism that tends to constrain agency regulatory power.

What can we predict about Barrett’s likely attitude toward environmental regulation, and climate change in particular? Would she vote to overturn Massachusetts v. EPA, the Court’s 2007 landmark holding that the Environmental Protection Agency may regulate greenhouse gases under the Clean Air Act? Would she vote to uphold the Trump administration’s rescission of the Obama-era greenhouse gas standards for the power sector, and its ambitious greenhouse gas and fuel efficiency standards for cars, and uphold the administration’s far weaker rules?

What of the administration’s legal theory that when setting power plant standards, the EPA cannot consider grid-wide strategies like substituting natural gas for coal, even though Congress told the agency to use the “best system” of emission reduction? Or the administration’s theory that federal law preempts California from setting its own vehicle greenhouse gas standards, and, separately, that EPA can revoke California’s current waiver to set those standards? Would it be more difficult for a new Biden administration to adopt ambitious greenhouse gas rules with Barrett on the Court?

Supreme Court nominee Judge Amy Coney Barrett leaves after testifying before the Senate Judiciary Committee on the third day of her confirmation hearing on Capitol Hill on October 14, 2020.
Bonnie Cash/Getty Images

Barrett’s record on environmental issues is thin, so her views are a matter of speculation.

Outcomes in particular cases turn on the facts, the administrative record, and the quality of advocacy. Yet it seems fair to say that Barrett’s addition to the high court will cement a trend, already underway, to restrict the modern administrative state. A further tilt of the Court in the direction it is already going — skeptical of expansive regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind — certainly won’t help the cause of environmental protection or public health.

Taming the government beast

A majority of justices on the Court already are wary of the “behemoth” that is the US administrative state, with the most pronounced antipathy coming from another relatively new addition, Justice Neil Gorsuch, who has argued passionately that agencies must be reined in. To greater or lesser extents, Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Chief Justice John Roberts have all warned of the dangerous accretion of administrative power. (Such views have gained traction in Congress too. In Barrett’s confirmation hearings, Republican Sen. John Kennedy fulminated against the administrative state, calling it a “rogue beast.”)

This attitude, which her record and judicial philosophy suggest Barrett may share, makes it less likely that the Court will defer to administrative agencies like the EPA when they pursue expansive regulation.

In theory, the Supreme Court still adheres to the general principle that courts should defer to agency interpretations of vague statutory provisions, providing they are reasonable. Known as Chevron deference, this principle assumes that Congress intends expert agencies to resolve statutory ambiguities in the first instance. But the Court has been taking a narrower view of Chevron — finding that it applies in fewer and fewer instances to a smaller scope of cases, and certainly not in the big cases where the agencies are doing ambitious things.

In particular, the Court is disinclined to give agencies much leeway to apply old statutes to new problems, even when those statutes are broadly worded. The Court increasingly prefers to send questions of major economic and political importance back to Congress for clearer instructions. While sensible-sounding on its face, this approach overlooks the possibility that Congress already did speak, when it gave the agency broad power in the first place.

All of this is to say that even before Barrett’s confirmation, the Court was growing more miserly about deference, and especially skeptical of far-reaching rules with big consequences that rely on new legal interpretations, like the Obama-era Clean Power Plan.

Barrett subscribes to a brand of textualism that looks askance at exertions of agency authority not rooted in explicit statutory text, which seems to align her with the major questions canon. Given the difficulty of passing new legislation, especially in an era of hyperpartisanship, the systematic application of this canon to send matters back to Congress is a one-way ratchet to regulatory stasis.

Supreme Court Justices Neil Gorsuch (L) and Brett Kavanaugh attend the State of the Union address in the chamber of the US House of Representatives on February 4, 2020.
Mario Tama/Getty Images

A majority of the Court also seems open to reviving the “non-delegation” doctrine, a constitutional principle that limits Congress’s ability to grant broad powers to agencies. The Court has not struck down a statute on this basis in 85 years, but just last year, three justices indicated their willingness to do so, and Alito said he would join them if a fifth vote could be found. Barrett, whose constitutional originalism might well align with a strict view of non-delegation, could provide the fifth vote. (So might Kavanaugh, who was not yet seated when the case was argued.)

Barrett’s views on standing seem restrictive. She has authored several opinions denying standing to plaintiffs for lacking a concrete and particularized injury. Her brand of constitutional interpretation and close embrace of Justice Antonin Scalia’s judicial philosophy suggests that she would look more skeptically at permissive standing rules, certainly more than Justice Ginsburg did. For example, a Justice Barrett likely would have sided with the dissent and voted to deny standing to the petitioners in Massachusetts v. EPA.

Raising the bar for standing would make access to courts disproportionately harder for environmental plaintiffs, because they often seek review for widely shared or indirect harms, and frequently ask the court to remedy agency underregulation. By contrast, industry can always get standing for direct economic harms, to air their grievances about overregulation.

Barrett has praised Scalia’s approach to the Affordable Care Act, which he found unconstitutional under the commerce clause. That could spell trouble for certain environmental statutes, like the Endangered Species Act, which has been challenged repeatedly as insufficiently related to interstate commerce. Lower courts consistently have upheld the act, but the Supreme Court has not ruled on its constitutionality. At a minimum, Barrett is expected to endorse Scalia’s narrow view of the EPA’s authority over wetlands under the Clean Water Act.

On the particular environmental law cases that people wonder most about, these are my best guesses about the difference Barrett will or won’t make: It is unlikely the Supreme Court will overturn Massachusetts v. EPA, since the Court tends not to overturn precedents about statutory interpretation, although it seems likely that Barrett would have voted differently than Ginsburg did in that case. (And indeed, if Massachusetts were relitigated today, with the Court’s current lineup, it likely would come out the other way.)

But the Court does not need to overrule Massachusetts to cabin EPA. It can simply read the EPA’s regulatory power narrowly, as I argued above. Barrett’s vote is not decisive on that score — the Court was headed in that direction already.

Senate Majority Leader Mitch McConnell wears a protective mask as he stands in an elevator at the US Capitol on October 20, 2020, in Washington, DC.
Stefani Reynolds/Getty Images

Barrett’s impact on a Biden climate plan

On the pending litigation over Trump’s regulatory rollbacks, like the power plant and fuel efficiency standards, there are a lot of remaining “ifs.” If Joe Biden wins the presidency, his Justice Department will ask the courts to hold those cases in abeyance until the agencies can reconsider the underlying rules. Presumably, a President Biden would want to reverse the Trump reversals and pursue a more ambitious greenhouse gas regulatory program.

It will be somewhat harder now for a president to use the Clean Air Act aggressively to set climate policy. But even before Barrett’s nomination, it’s not as if the Biden campaign, or the environmental advocacy community, was thinking that the Supreme Court would be a sympathetic forum for far-reaching climate rules.

Even so, there is plenty a Biden administration could accomplish using EPA’s and other agencies’ existing legal authority, just by restoring and strengthening the rules the Trump administration has gutted — for example by setting strong standards for power plant carbon dioxide, methane emissions, fuel efficiency, appliances, and the like. A lot of progress can be made without embracing the riskiest legal positions, because technological advances and market conditions have shown what industry can achieve, which provides a sound basis for ambitious standards.

Biden has pledged to pursue legislation in tandem with using executive power to tackle climate change. There is no question that to achieve his goal of net-zero economy-wide emissions by 2050, Congress will need to legislate.

What if Trump wins?

If President Trump wins reelection, the litigation over EPA’s regulatory rollbacks will play out and could reach the high court. With Barrett’s vote, it is incrementally more likely that the Court would endorse the Trump administration’s cramped view of EPA’s authority to regulate existing power plants. Reversing that decision would then require Congress to amend the Clean Air Act, which the Democrats could do if they retain the House and flip the Senate, especially if they jettison the filibuster rule for legislation, as has been done for judicial appointments. Congress would need a two-thirds vote to override a Trump veto.

It is less clear that the Supreme Court would endorse the Trump administration’s theory that California is preempted from setting vehicle greenhouse gas standards by the energy conservation law that assigns fuel efficiency to the Transportation Department. Preemption cases involve delicate questions of state and federal power, and conservative justices sometimes depart from their strict textual tendencies in resolving them.

The Supreme Court already opined, in Massachusetts v. EPA, that fuel efficiency and greenhouse gas standards are legally distinct and can live harmoniously together — and the Obama administration demonstrated that they could. But if the Court did find California preempted, new legislation would be needed to reverse that holding.

The Court could take an alternative route and uphold EPA’s revocation of California’s waiver on the theory that climate change does not affect California uniquely or create “compelling and extraordinary conditions” in the state. Fixing that decision would not require Congress, though; a new administration could simply issue a new waiver.

Much will turn on how the Court decides these legal questions, if it decides them. Depending on the reasoning, a future president might still have flexibility to reverse course.

Demonstrators wearing face masks hold placards while...
Demonstrators wearing face masks hold placards calling on Congress to suspend the Supreme Court confirmation process at Freedom Plaza in Washington DC, on October 17.
Photo by John Lamparski/SOPA Images/LightRocket via Getty Images

In each case, the Court would also evaluate whether the Trump administration’s weaker standards are rational and sufficiently supported by the administrative record. On such questions, a Justice Barrett, along with a majority of the Court, might well reject the rules, which rest on tenuous scientific and economic arguments. Even conservative judges bristle at shoddy agency work, which no one has done more of than the Trump administration. Still, it is not clear that Barrett’s vote would change the outcome in any particular one of these cases.

If Supreme Court nominations are a mood, however, the mood for EPA is grim. In truth, it has been growing grimmer since Justice Gorsuch filled Justice Scalia’s seat and Justice Kavanaugh replaced Justice Kennedy. The Court, with Barrett as a reliable fifth or sixth vote, is now more likely to take an especially problematic combination of views: a cramped view of agency authority when an agency seeks to regulate; a permissive view of agency authority when an agency seeks to deregulate; a restrictive view of Congress’s power to delegate; a more skeptical view of Congress’s Commerce Clause power; and a narrower view of Constitutional standing. That conservative blend does not bode well for the modern regulatory state — certainly not for environmental regulation.

Justice Ginsburg wrote several important environmental law decisions, including EME Homer, upholding EPA’s innovative market-based strategy to control inter-state air pollution, and AEP v. Connecticut, reinforcing EPA’s authority to regulate greenhouse gases under the Clean Air Act. She was not an environmental law hero like Justice William O. Douglas or Justice John Paul Stevens, the author of Massachusetts v. EPA, but she was open to the idea that achieving the broad purposes of environmental law requires EPA to have some flexibility.

We will miss her vote, and her voice. Barrett’s will be very different.

Jody Freeman is the Archibald Cox Professor of Law and director of the Environmental and Energy Law Program at Harvard Law School, and a leading scholar of administrative law and environmental law.

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