{"id":14943,"date":"2012-07-03T13:42:33","date_gmt":"2012-07-03T17:42:33","guid":{"rendered":"http:\/\/cfif.org\/v\/freedom_line_blog\/?p=14943"},"modified":"2012-07-03T13:42:42","modified_gmt":"2012-07-03T17:42:42","slug":"appeals-court-says-epa-can-regulate-greenhouse-gases-congress-flatfooted","status":"publish","type":"post","link":"https:\/\/cfif.org\/v\/freedom_line_blog\/14943\/appeals-court-says-epa-can-regulate-greenhouse-gases-congress-flatfooted\/","title":{"rendered":"Appeals Court Says EPA Can Regulate Greenhouse Gases, Congress Flatfooted"},"content":{"rendered":"

In one of my other incarnations I teach public policy and legal interpretation at Pepperdine University\u2019s School of Public Policy.\u00a0 One of the cases we discuss every fall is Massachusetts v. EPA<\/a>, a controversial standing decision by the Supreme Court that allowed the Bay State and others to bend the rules for suing the EPA for not<\/em> regulating greenhouse gases.<\/p>\n

This was in the halcyon days of the George W. Bush Administration when conservative EPA appointees had the temerity to point out that the Clean Air Act gave the agency no authorization to interpret carbon dioxide as pollution to be regulated.<\/p>\n

No bother, said then-Justice John Paul Stevens in his majority opinion that included Justice Anthony Kennedy, author of last week\u2019s immigration decision in Arizona v. U.S<\/a>.\u00a0 In the EPA case, Justice Stevens said that states like Massachusetts are due \u201cspecial solicitude\u201d when litigating at the federal bar, especially when their sovereignty is threatened by eroding coastlines thanks to future speculated rises in sea levels from global warming.\u00a0 (I\u2019ll bet Arizona Governor Jan Brewer would have liked Justice Kennedy to remember her state\u2019s \u201cspecial solicitude\u201d regarding the integrity of its borders.)<\/p>\n

Now we\u2019ve got a different Administration and a different outcome.\u00a0 The Obama EPA was all too happy to make the carbon dioxide endangerment finding the Supreme Court made possible.\u00a0 The energy industry sued claiming EPA lacked jurisdiction, and last Tuesday the D.C. Court of Appeals upheld EPA\u2019s unenumerated power<\/a> to redefine pollution.<\/p>\n

Unless the Supreme Court intervenes and overrules the D.C. Circuit, the fight will now move to how EPA uses its newfound regulatory power.\u00a0 What are the likely outcomes?\u00a0 The New York Times<\/a> summarizes two of the main arguments:<\/p>\n

\u201cThis decision ensures that a regulatory approach to emissions cuts will take place, whether or not Congress acts legislatively,\u201d said Paul Bledsoe, a senior adviser at the Bipartisan Policy Center,<\/a> a nonprofit group that specializes in energy and environmental issues. \u201cThe question is, does the industry push Congress to develop a more efficient, less costly approach now that regulation is inevitable?\u201d<\/p>\n

But Representative Fred Upton<\/a>, the Michigan Republican who is chairman of the House Energy and Commerce Committee, said that Congress\u2019s refusal to approve greenhouse gas limits constituted a decision and that lawmakers should act now to reverse the E.P.A. emissions rules. Carbon regulation \u201cthreatens to drive energy prices higher, destroy jobs and hamstring our economic recovery,\u201d he said.<\/p><\/blockquote>\n

So, an overweening federal agency emboldened by implied powers of regulatory control is going to act \u201cwhether or not Congress acts legislatively\u201d?\u00a0 My sympathies are with Chairman Upton\u2019s point that no decision is a decision, but that\u2019s clearly not a roadblock to activist bureaucrats with case precedent on their side.\u00a0 It\u2019s time for Congress to get back in the game and rein in the administrative state with clear and direct commands.\u00a0 They know how to write those kinds of statutes.\u00a0 It\u2019s time they did more of it.<\/p>\n","protected":false},"excerpt":{"rendered":"

In one of my other incarnations I teach public policy and legal interpretation at Pepperdine University\u2019s School of Public Policy.\u00a0 One of the cases we discuss every fall is Massachusetts v. EPA, a controversial standing decision by the Supreme Court that allowed the Bay State and others to bend the rules for suing the EPA […]<\/p>\n","protected":false},"author":9,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[1902,84,608,2152,717,300,284],"class_list":["post-14943","post","type-post","status-publish","format-standard","hentry","category-posts","tag-anthony-kennedy","tag-congress","tag-epa","tag-fred-upton","tag-john-paul-stevens","tag-regulation","tag-u-s-supreme-court"],"_links":{"self":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14943","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/comments?post=14943"}],"version-history":[{"count":7,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14943\/revisions"}],"predecessor-version":[{"id":14950,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14943\/revisions\/14950"}],"wp:attachment":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/media?parent=14943"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/categories?post=14943"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/tags?post=14943"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}