The Supreme Court will hear an important case next week involving regulatory overreach by the Environmental Protection Agency (EPA). The case involves greenhouse gas regulation, but it also raises the issue of how far the Obama administration can go in ignoring laws that Congress adopts in favor of its well-documented “go-it-alone” approach.
The stakes in the case, known as Utility Air Regulatory Group v. EPA, are enormous. The administration has been criticized for governing by executive fiat, but what it has in mind with greenhouse gas regulation dwarfs anything it has done so far, and opens the door to a fundamental restructuring of the constitutional division of power between the Executive and Legislative branches of government.
After President Obama took office, he tried to convince Congress to grant EPA broad authority to regulate greenhouse gas emissions through a cap-and-trade program. Yet even though there were 60 Democrats in the Senate when the president took office, the Senate decisively rejected the legislation.
So the administration seized on a 2007 Supreme Court decision, known as Massachusetts v. EPA, as authority to adopt the far-reaching program that Congress had spurned. In the 5-4 decision, the Court had ruled that the 1970 Clean Air Act authorized EPA to regulate greenhouse gas emissions from cars.
The decision was controversial. The Clean Air Act was designed to regulate traditional types of air pollutants, which affect the air near or downwind of where the pollutants are emitted. The Act is not designed for globally-circulating greenhouse gases, and trying to shoehorn them into the statute will inevitably produce absurd results.
This has now become clear. The administration currently interprets the decision as authorizing greenhouse gas regulation not just for cars but for the entire economy, and in a fashion that the administration, rather than Congress, dictates.
EPA began its regulatory push by requiring factories and manufacturers to obtain greenhouse gas permits. But the EPA recognized that regulating greenhouse gas emissions under the Clean Air Act permit programs would subject an absurdly large number of buildings and facilities, more than 6 million in the agency’s estimation, to potential regulation. So EPA issued a controversial “tailoring rule,” in which it “tailored”-- meaning it rewrote -- the statute so that the permit program no longer resembles the one Congress enacted.
Under elementary separation of powers principles, however, only Congress can write or rewrite statutes. Agencies don’t write laws, they execute them. The absurdity of requiring millions of buildings and facilities to obtain greenhouse gas permits should have led the EPA to conclude the obvious: Congress never intended to regulate greenhouse gases under the Clean Air Act permitting programs.
EPA followed up the “tailoring rule” with another proposed greenhouse gas regulation that similarly departs from explicit congressional requirements. EPA’s proposal requires that new coal-based electric generating stations utilize carbon capture and storage (CCS) technology to prevent the emission of carbon dioxide.
This technology, however, is at least 10 years away from being commercially available. The EPA’s CCS requirement thus is a poison pill that will eliminate new coal plants from the nation’s energy mix. Congress, however, has never passed a law saying the EPA could put a whole section of the American economy out of business by ordering it to use technology that is not commercially available.
The EPA won’t stop with coal. The agency has already adopted more than 100 greenhouse gas regulations spanning several thousand pages of the Federal Register. The economy runs on fossil fuels, which result in greenhouse gas emissions. The power to regulate greenhouse gases, therefore, is the power to regulate nearly everything. And indeed, the EPA now has before it requests for regulation of the entire industrial and manufacturing sector: trucks, ships, trains, planes, farms, mines and on and on.
The administration has made no secret of the fact that it intends to go as far as it can in using executive power to bring about its own transformative vision of the future. So the Supreme Court’s review of the EPA’s “tailoring rule” is critically important.
Because if the EPA can really “tailor” the Clean Air Act so that the law reads the way the agency wants it to read, instead of the way Congress wrote it, the administration will essentially be free to proceed with its agenda without the need to obtain the approval of the people’s elected representatives in Congress.
The implications for our system of government are profound.
Peter Glaser is a Clean Air Act attorney in the Washington, D.C. office of Troutman Sanders, LLP and is chairman of the firm's climate change practice. He filed an amicus brief for the Washington Legal Foundation in the Utility case.