Last week, the Supreme Court granted cert in another important administrative law case—yet again involving EPA; yet again arising over the agency’s riff on the Clean Air Act; yet again a Chevron case. After EME Homer City and Utility Air Regulatory Group (UARG) (yet again a petitioner in this case), it’s the third such case to be heard, decided, or granted in a single calendar year. Maybe it’s just the ebb and flow of cases, but a casual survey of the D.C. Circuit’s environmental docket and the EPA’s ambitious plans to rid the galaxy of any chemical whatever strongly suggests that cases of this sort will continue to loom large.
Under the Constitution, states have no right to “interpose”—that is, to block the enforcement of supreme, validly enacted federal law. However, with the arguable exception of the judges in each state, state officials are under no obligation to execute an affirmative federal command issued to them. They cannot be ordered to accept federal funds or to establish an exchange. The ACA illustrates the salutary force of this constitutional precept: grand federal schemes gang aft agley. The next big illustration could and hopefully will be the regulation of greenhouse gases under section 111(d) of the Clean Air Act (CAA), coming very soon in this theater.
Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.
Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event). Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do…
In countries such as Germany (see recent post), climate change regulation proceeds by idiotic, popular and partisan consensus. Stateside, there’s less enthusiasm for post-carbon fantasies. Thus, climate regulation must be and has been put on autopilot. Two recent D.C. Circuit decisions (described below) illustrate the point. They also illustrate the need to think a bit harder about the administrative state. Today, the decisions; tomorrow, the lessons.
The president, armed with inherent executive power topped with statutory authority, faced a dilemma: Danger beckoned. Congress alternated between theatrical hems and political haws. The international position and perhaps security of the United States were at stake. So he chose the path of boldness—the path down which greatness lies.
Reported in certain journals, that might have been President Bush at the height of the Global War on Terror. But portrayed in other outlets, it was President Obama bypassing Congress, employing unilateral executive power to regulate greenhouse gases. Politically, a great distance separates Bush and Obama. Constitutionally, it is increasingly difficult to tell them apart—and one reason is the theory of the Presidency some conservatives propagated a decade ago and which is now being bent toward purposes that probably make them wish they had remembered the axiom never to endorse any power one would not entrust to one with whom one disagreed.
As previously discussed here, here, here, and here, Massachusetts v. EPA (2007) created a greenhouse gas exception to every known principle of Administrative Law. It also prompted an improvised EPA climate change regime, which is shaping up as the most convoluted and expensive regulatory regime in history. The Supremes will get another look at this disaster-in-the-making, and not a moment too soon.
Sarah Elkind, a professor of history and Director of Environment Studies at San Diego State University, has written a short but information-laden book, How Local Politics Shape Federal Policy: Business, Power, & the Environment in Twentieth-Century Los Angeles (Univ. North Carolina Press, 2011). The first half of the book provides great detail about political scraps in the Los Angeles area in the first part of the last century regarding air pollution, water pollution, and flood control. The discussion reads in a familiar manner. Change some names and details and the same forces are in play in the first half of the…
Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.
By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.
Tomorrow and the day after, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Rogers, Sentelle, and Tatel) will hear oral arguments in a raft of cases challenging the Environmental Protection Agency’s rules on the regulation of carbon dioxide (CO2) and other greenhouse gases (GHG). In its scope and consequences, the EPA’s climate change program exceeds even ObamaCare and Dodd-Frank: it threatens to engulf any firm, facility, and product that emits CO2 above minimal threshold amounts. However, the EPA’s program in this case does not rest on a 2,000-page enactment by a temporarily deranged Congress, nor even on a unilateral bureaucratic power grab. Rather, it proceeds, with seeming and depressing inexorability, from a series of crabbed and tendentious judicial and administrative interpretations of a few stray provisions in the Clean Air Act (CAA)—a statute that long pre-dates the climate change crisis or obsession (take your pick) and, by uniform consensus, is designed to tackle local air pollution, not a global calamity.
What the D.C. Circuit is looking at is a fantastically expensive and convoluted regulatory program that is uniformly acknowledged to produce no discernible climate change benefit whatsoever. Yet that exercise in pointless social mortification—a kind of permanent socio-economic Lent without Easter—threatens to elude any of the ordinary checks and controls: cost-benefit comparisons; judicial arbitrary and capricious review and statutory limitations; congressional or presidential intervention.
Today’s post discusses the trajectory of the climate change train wreck and its principal legal questions. Tomorrow’s post will address the broader institutional questions.