Can the EPA simply rewrite a law to suit its policy goals?
The Obama Administration’s penchant for rewriting the law via regulation will get a major test on Monday when the Supreme Court hears a challenge to the Environmental Protection Agency’s “carbon endangerment” rule. This case is especially significant because it will determine whether the agency can rewrite its own previous rewrite of the Clean Air Act to bypass the normal channels of democratic consent.
The Clean Air Act of 1970 and its 1990 amendments never mention carbon dioxide as a pollutant. Though global warming has nothing to do with “clean air,” the environmental lobby sued to force the EPA to regulate CO2 emitted by cars and other “mobile sources.” In 2007, in Massachusetts v. EPA, a 5-4 majority sided with the greens, with Justice Anthony Kennedy joining the liberals.
That ruling merely held that the EPA could declare carbon a pollutant under the Clean Air Act, not that the agency must, but President Obama’s climateers have taken it as a license to regulate carbon across the economy. Beyond tailpipes, they’ve moved to emissions from so-called stationary sources, mainly power plants but also heavy industry such as factories and cement makers.
Problem is, the Clean Air Act is one of America’s largest and most prescriptive laws, with little provision for executive discretion. If the EPA decides to regulate something, Congress in the statute tells the EPA how the agency must regulate for its many specific clean-air programs.
Since the Clean Air Act was never designed to address CO2 and greenhouse gases are unlike the pollutants the law was meant to address, the stationary source programs would wreak economic havoc if applied to carbon. The statute mandates that the EPA regulate emissions above the specific numerical threshold of 100 tons of a conventional pollutant like sulfur dioxide or ozone. But ubiquitous carbon is released in quantities many orders of magnitude larger than 100 tons, and thus in practice the rule would sweep up some six million schools, hospitals, farms, churches, office buildings and even some large homes.
The incredible thing about Utility Air Regulatory Group v. EPA, which consolidates six related lawsuits, is that the EPA agrees with all that. The agency argues that following the law as written would be “unrecognizable” to the Congress that enacted the law and claims that enforcing the law would be an “administrative impossibility.” The other doctrine the EPA is asserting is known as “absurd results,” meaning that the literal interpretation of the statute would lead to irrational or unreasonable outcomes.
The executive branch has always used the absurd results doctrine to make minor adjustments or to justify not enforcing a legal provision. And this is what the EPA should have done to avoid crowbarring carbon into what it admits is an unworkable regulatory framework. Instead, for the first time the agency is using the legal theory to arrogate the power to revise plain statutory language. Instead of 100 tons for carbon, the EPA unilaterally invented the new limit of 75,000 tons.
The Supreme Court is merely being asked to vacate the stationary source rule-making, not to revisit Mass v. EPA, alas. All the challenge asks is that if the EPA decides to regulate CO2, then it must obey the rule of law and regulate CO2 as the Clean Air Act instructs.
The White House is trying to avoid doing so because the political pros know that stationary source permitting by the EPA’s own estimates costs as much as $125,120 and can be delayed for as long as 10 years. Democratic voters attend church and own small businesses too, and the political backlash would be fierce.
The White House could have persuaded Congress to adopt a new round of clean-air amendments, or to pass cap and trade. It tried the latter in 2009-2010 and failed. Justice Kennedy, the swing vote, must decide if federal regulators can assume the power to rewrite laws on their own without the authority granted by Congress. That would be the most absurd result of all.