Another Big Win: the Court Clips Regulatory State's Claws

Clarice Feldman01 Jul, 2022 5 Min Read
Let my people go.

On its last day of the current session the Supreme Court by a 6-3 majority finally clipped the talons of the Environmental Protection Agency, denying the agency power to issue broad regulations regarding "climate change." In the process, the Court sent a warning shot to the administrative state and Congress: legislation on broad matters (“major questions”) must come from the legislative branch (Congress), not from the executive branch via "regulation." The decision upends decades of government rule by D.C. bureaucrats, a practice set in operation by Franklin D. Roosevelt who created and empowered some 70 offices and agencies under presidential control. The EPA was established by Richard Nixon in 1970.

The Supreme Court ruled Thursday that federal regulators exceeded their authority in seeking to limit emissions from coal plants in a decision that sharply curtails the executive branch’s authority to make policy actions on a range of issues without congressional direction. In a blockbuster 6-3 decision penned by Chief Justice John Roberts, the court said the Environmental Protection Agency had overstepped when it devised the Obama-era regulatory scheme, known as the Clean Power Plan. The plan had been challenged by West Virginia and others.

The court said that when federal agencies issue regulations with sweeping economic and political consequences—in this case, rules to address climate change—the regulations are presumptively invalid unless Congress has specifically authorized the action.

The case, which must certainly be electrifying the D.C. poohbahs, is West Virginia, et al v. EPA et al. It is a clear threat of a continuing unraveling of the administrative state. How big a deal is this? Far bigger than the earlier decision on abortion (Dobbs v. Jackson), which simply returned the power to regulate abortion to the states. This decision, however, does something arguably even more important to our democracy: it forces Congress to start taking its job seriously again.

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The case began six years ago and has continued through a series of shifts occasioned by a change in presidents, traveled upward to the Supreme Court following a number of court proceedings ,and clarified the capacity of affected parties to sue in the face of indefinite suspension of the regulation to which they object.  The issue was first joined when the Obama administration's EPA issued a plan for reducing carbon dioxide from power plants. Under this "Clean Power Plan," plants would get credits for generating more power from lower-emitting sources. A coalition made up of states and coal companies sued on the ground that the Clean Air Act, the purported authorization for these regulations, gave the EPA only authority to restrict pollution at steam-generating coal power plants, not to require power companies to adopt the government's choices of fuel.

Not so tough anymore.

The Supreme Court blocked enforcement of that rule. Then President Trump changed the rules. Under his administration EPA could only regulate emissions from individual coal-fired steam plants (the Affordable Clean Energy Rule). This shift was challenged by a different coalition made up of environmental groups. The new rules were struck down by the U.S. Court of Appeals for the District of Columbia, leaving the area open for the Biden administration to act.

It was feared the new administration would simply resurrect the earlier Obama approach and require a shift to so-called "renewables." As you might expect, leaving such matters to administrative agencies creates a kind of legal roller coaster, the very sort of thing impossible to contend with in industries that require extensive planning and tremendous capital outlays. Such a fear prompted this case. The West Virginia-led coalition contended that the EPA was seeking to dictate “the big picture of how the nation generates its electricity.” Which was, of course, true.

Like the abortion ruling in Dobbs, this decision is a return to federalism. In Dobbs the power to regulate abortions was returned to the states. In this case the power to regulate power plant fuel is returned to Congress. Imagine congressional debates and action now, in an era when "climate change" polls poorly, and will continue to do so because the costs—the price of gas, home heating, all transported goods—continue to rise as a direct result of  the energy constraints of this fantasy. The responsibility for such nonsense and the pain consumers endure would be squarely on them.

Senate majority leader Chuck Schumer, doesn’t have to imagine.  He knows this is a disaster for his party. With a paper-thin majority in both houses (one currently in jeopardy in the tied Senate as senator Patrick Leahy currently is sidelined with a broken hip), a predicted red wave in November, and the country already in a recession, passage of a law to  curb inexpensive energy in order to meet a posited "climate emergency" is not likely.

Pelosi and Schumer: over a barrel.

Politico reports:" Senate Majority Leader Chuck Schumer said in a statement that 'just like last week’s dangerously misguided and abhorrent decisions on gun safety and abortion, the extremist MAGA Court’s ruling today in West Virginia v. EPA will cause more needless deaths — in this instance because of more pollution that will exacerbate the climate crisis and make our air and water less clean and safe.'" It's more likely, in my opinion, that the decision will lead to fewer opportunities for graft and the deaths of some Democratic careers. As professor  Jonathan Turley tweets,  

It is a curious sight of a congressional leader denouncing a decision that prevents the circumvention of Congress. It is a virtual statement of self-loathing like a player complaining of being sent back into the game by the coach... This is not the first time that Democrats have called for a president to usurp the authority of their own branch. It undermines the faith held by figures like Madison that ambition would combat ambition in the protection of the separation of powers.

Of course, in reality they are not complaining that they’ve been given more power. They know their side is not in a position to deliver what its green base demands. How far from reality is the Democrat saber rattling on this issue? This far according to Politico:

 Congressional Democrats whose efforts to pass legislation to fight climate change have been blocked for years — both by Republicans and, more recently, by Democrats’ own troubles unifying their razor-thin Senate majority — said their party must take action in response to the Supreme Court’s decision. However, the party has so far failed to garner the 50 votes in the Senate needed to move climate legislation amid resistance from West Virginia Sen. Joe Manchin, and supporters see the next few weeks as the last chance to pass a measure.

It's not just the EPA which should be drawing in its belt. This is a significant reduction in the power and grasp of the administrative state. Professor Jonathan Adler notes: "This is also a warning for other federal agencies, including FERC and the SEC. It makes clear that if the federal government is going to take meaningful action to mitigate the threat of climate change (as it should) that action will have to come from Congress."

The Democrats can see the political chessboard as clearly as can I, that’s why you won’t see any debate on "climate change" legislation this year. Instead they’ll be demagoguing about packing the Supreme Court, something even their idol FDR was unable to pull off. Anything to avoid accepting public accountability, and thus scrutiny, for their actions.

Clarice Feldman is a retired attorney living in Washington, D.C. During her legal career she represented the late labor leader Joseph ("Jock") Yablonski and the reform mine workers against Tony Boyle. She served as an attorney with the Department of Justice Office of Special Investigations, in which role she prosecuted those who aided the Nazis in World War II. She has written for The Weekly Standard and is a regular contributor to American Thinker.

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6 comments on “Another Big Win: the Court Clips Regulatory State's Claws”

  1. "Franklin D. Roosevelt who created and empowered the EPA...."

    That would come as a bit of a surprise to Roosevelt, and to former President Richard Nixon who created the EPA in 1970.

  2. What effect if any will the West Virginia decision have on all of the thousands of State agencies across the fifty States?

  3. A characteristic of people on the Left is magical thinking. They firmly believe that mankind (or is it humankind) can control the temperature of the earth. Not only that but that control can be accomplished merely by eliminating one parameter, CO2. That sort of magical thinking is what also makes Leftists believe that a man can transform himself into a woman and vice versa. And with magical thinking there is no contemplating what the downstream negative effects of these catastrophic ideas will bring. This is what the Marxist/Democrat/Hate America Party believes and it will destroy this nation. Hopefully this ruling will derail these idiots.

  4. The Social Cost of carbon, as presently calculated is the problem.
    Because of the false climate narrative, the social cost of carbon is a large and frightening number.
    Since anthropogenic carbon dioxide mildly and net beneficially raises temperature and anthropogenic carbon dioxide greens the earth to a remarkable degree, thus the social cost of carbon is negative.
    Our release is seredipitously a benefit.
    Until this fundamental error in the narrative is corrected we travel down the road to waste and want, all completely unnecessarily.
    It is tragic and very unfortunate that we are so susceptible to this false narrative pushed by authoritarians so stupid that they succumb to the love of money, of fame, and especially power and they ignore real science, real observations, and real trends.
    This will not end well.
    Truth outs itself in a natural world.
    This artificial and false narrative will eventually be ousted; the human race can get warped culturally but when the warping degenerates badly, nature and humanity finally respond to the degradation, and so we persevere as a species.
    Our descendants will some day wonder at our present cultural madness and much regret the waste.
    ==============

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