In January of this year, we discussed the Supreme Court decision in National Federation of Independent Business v. Department of Labor. There, the Court found that the Department’s Occupational Safety and Health Administration (OSHA) did not have the authority to mandate that private employers with more than 100 employees must require their employees to receive the Covid-19 vaccine. We noted at that time, “(u)nder Article 1 of the United States Constitution…it is basic to our structure of government that Congress makes the laws, and can delegate to ‘any department or officer’ whatever power is necessary to execute and enforce those laws.” Further, under Article 2 of the Constitution, “'(t)he President is responsible for implementing and enforcing the laws written by Congress.’ That is, the President does not make the laws.”
Seems simple enough, doesn’t it? If Congress does not delegate a power to a department or officer, that department or officer of the government cannot act. If Congress does not enact a law, the President cannot act. Power resides with the Congress, who are the elected representatives of the People of the United States. The President, and the various Departments (who are all under the authority of various Secretaries of the President’s Cabinet), can only “implement and enforce the laws written by Congress.”
This is the structure, the framework, of our Republic. Yet once more, the Supreme Court, which is tasked with interpreting those laws written by Congress, has been forced to explain to the Biden Administration why it cannot act without Congressional approval.
In West Virginia v. Environmental Protection Agency, Chief Justice Roberts delivered the opinion of the Court. “The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a ‘standard of performance’ for their emission of certain pollutants into the air,” the Court explained. “Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the ‘best system of emission reduction’ for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.”
The EPA used Section 111 of the Clean Air Act, which “directs EPA to (1) ‘determine[],’ taking into account various factors, the ‘best system of emission reduction which . . . has been adequately demonstrated,’ (2) ascertain the ‘degree of emission limitation achievable through the application’ of that system, and (3) impose an emissions limit on new stationary sources that ‘reflects’ that amount… Section 111…’operates as a gap-filler,’ empowering EPA to regulate harmful emissions not already controlled under the Agency’s other authorities.”
According to Justice Roberts, “EPA has used (Section 111) only a handful of times since the enactment of the statute in 1970…(i)t was…only a slight overstatement for one of the architects of the 1990 amendments to the Clean Air Act to refer to Section 111…as an ‘obscure, never-used section of the law.’”
In 2015, under the Obama Administration, the EPA decided that “the ‘best system of emission reduction . . . adequately demonstrated’ was one that would reduce carbon pollution mostly by moving production to cleaner sources” such as wind, solar and natural gas. To this end, “(t)he Agency settled on what it regarded as a “reasonable” amount of shift, which it based on modeling of how much more electricity both natural gas and renewable sources could supply without causing undue cost increases or reducing the overall power supply. (Citation omitted.) Based on these changes, EPA projected that by 2030, it would be feasible to have coal provide 27% of national electricity generation, down from 38% in 2014.”
The problem? “From these significant projected reductions in generation, EPA developed a series of complex equations to ‘determine the emission performance rates’ that States would be required to implement. (Citation omitted.) The calculations resulted in numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them…(t)he point, after all, was to compel the transfer of power generating capacity from existing sources to wind and solar. The White House stated that the Clean Power Plan would ‘drive a[n] . . . aggressive transformation in the domestic energy industry.'”
Roberts notes also that “EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors…(t)he Energy Information Administration reached similar conclusions, projecting that the rule would cause retail electricity prices to remain persistently 10% higher in many States, and would reduce GDP by at least a trillion 2009 dollars by 2040.”
Lucky for the US economy, the 2015 EPA rules were halted by the Trump Administration, in 2019. At that time, the EPA determined that the 2015 rule change ” fell under the ‘major question doctrine.’ (Citation omitted.) Under that doctrine, EPA explained, courts ‘expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance’…no section 111 rule of the scores issued ha[d] ever been based on…that novel reading of the statute (which) would empower EPA ‘to order the wholesale restructuring of any industrial sector’ based only on its discretionary assessment of ‘such factors as ‘cost’ and ‘feasibility.’”
In other words, the EPA of the Trump Administration had concluded that the EPA of the Obama Administration had overstepped their authority.
Enter yet another change of Administration. Much like the Obama Administration, the Biden Administration wanted the 2015 interpretation of the Clean Air Act to stand, and in 2019, a lower Appellate Court agreed, concluding “that the major questions doctrine did not apply, and thus rejected the need for a clear statement of congressional intent to delegate such power to EPA.”
Before the Biden EPA could annihilate the coal industry, and impose regulations that would ruin the American economy even further, the Supreme Court stepped in.
“’Congress could not have intended to delegate’ such a sweeping and consequential authority ‘in so cryptic a fashion,'” Roberts writes. “Extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s]’… Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line…(w)e presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’” (Citations omitted.)
Finding that this was a “major questions” case, the Court held that the “EPA ‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority’…(i)t located that newfound power in the vague language of an ‘ancillary provision[]’ of the Act…one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself…(g)iven these circumstances, there is every reason to ‘hesitate before concluding that Congress’ meant to confer on EPA the authority it claims under Section 111.” (Citations omitted.)
“(W)e cannot ignore,” Roberts continued, “that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions ‘had become well known, Congress considered and rejected’ multiple times…(a)t bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme…for carbon. (Citation omitted.) Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program…(i)t has also declined to enact similar measures, such as a carbon tax…(g)iven these circumstances, our precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps.”
Thus, while the Court believes that “(c)apping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day’…it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111…(a) decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Reaction to the Supreme Court’s decision was predictable. According to California Governor Gavin Newsome, “SCOTUS sided with the fossil fuel industry, kneecapping EPA’s basic ability to tackle climate change. CA will lead this fight with our $53.9 BILLION climate commitment. We’ll reduce pollution, protect people from extreme weather & leave the world better off than we found it.” White House Spokesperson Abdullah Hasan claimed that “This is another devastating decision from the Court that aims to take our country backwards. While the Court’s decision risks damaging our ability to keep our air clean and combat climate change, President Biden will not relent in using the authorities that he has under law to protect public health and tackle the climate change crisis.”
But the Attorney General for West Virginia, Patrick Morrisey, has a more realistic position, in keeping with the language used by Justice Roberts in his opinion; “Huge victory against federal overreach and the excesses of the administrative state. This is a HUGE win for…those who care about maintaining separation of powers in our nation.”
In other words, to paraphrase Justice Roberts and AG Morrisey, the issue isn’t whether or not the nation needs to transition from fossil fuels to “greener” energy sources. At heart, the EPA only has the powers granted to it by Congress, and if this issue has a solution, that solution must come from Congress, and not unelected bureaucrats.
Now, if only the Biden Administration showed as much respect for the Constitution as the Supreme Court…
Judge John Wilson (ret.) served on the bench in NYC