Biden’s Backdoor EPA End-Runs the Supreme Court

Christopher Horner25 Aug, 2023 4 Min Read
And away we go.

The Supreme Court has repeatedly thwarted the Environmentalist Left’s ambitions of going around Congress to impose its own agenda through the regulatory state instead. Having now lost control of the Court, viewed for decades by many Leftists as their super-legislature, prominent academics have been calling on President Biden to ignore the it, while activists run a campaign to discredit the institution in the hope of packing it with sympathetic allies.

On top of that, public records indicate that Biden’s team have also devised a plan to work around the Court. Emails, letters, and a heavily redacted but nonetheless damning slide-show obtained under the Freedom of Information Act confirm how key administration officials are proceeding with Biden’s climate agenda in brazen defiance of Supreme Court rulings. These records confirm an approach to pretextually deploy a “suite of rules” from Biden’s Environmental Protection Agency (EPA), representing a backdoor strategy to force facilities to close, to direct investment toward administration priorities and, in short, impose an agenda never authorized by Congress.

In its 2022 West Virginia v. EPA opinion, the Court overturned the Obama-Biden “Clean Power Plan” which set strict limits on greenhouse gas emissions from U.S. power plants. In a 6-3 ruling, the justices admonished the EPA for claiming to have discovered “an unheralded power representing a transformative expansion of its regulatory authority” out of frustration over Congress's repeatedly considering and rejecting the idea of giving the EPA the power to regulate and force “generation shifting”, i.e., the climate agenda of requiring "renewable" energy.

That's the way you do it.

The Court reasoned that if an agency cannot point to “clear congressional authorization” to impose burdens of such “economic and political significance,” the authority doesn’t exist.

The ruling reflects the “Major Questions Doctrine,” a principle grounded in the separation of powers and instrumental in recent opinions overturning the Occupational Safety and Health Administration (OSHA) vaccine mandate and the Centers for Disease Control’s (CDC) rent moratorium. Presumably, it put to rest the increasing scourge of “pen-and-a-phone” governance, known at the EPA as “law whispering” for teaching old laws new tricks.

Weeks before the West Virginia ruling, during a press availability at the 2022 CERAWeek gathering in Houston, Biden’s EPA administrator Michael Regan let slip the agency’s approach, well aware of the vulnerability the EPA faced in claiming such sweeping “climate” powers in order to dictate “how Americans get their energy,” in the words of Chief Justice John Roberts’ majority opinion.

With honesty he should come to regret, Regan casually declared a decision to not rely on particular, specific grants of regulatory authority but, instead, the EPA would impose a “suite of rules” targeting disfavored activities with every regulatory tool at its disposal, to force plant closures and compel investment consistent with the Agency’s green push.

Judge, jury, executioner.

Calling “expedited retirement [of power plants]… the best tool for reducing greenhouse gas emissions,” Regan warned that, “[t]he industry gets to take a look at this suite of rules all at once and say, 'Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean energy future?'”

This accurately reflects the EPA’s present course, and records obtained by policy groups I represent in FOIA litigation show this was the plan all along.

Government Accountability & Oversight obtained one post-election email from a soon-to-be Biden official describing the approach, even using the phrase “suite of climate policies.” Energy Policy Advocates obtained a February 2021 PowerPoint slide show given two weeks into Biden’s term by Joseph Goffman, hailed as the Agency’s “law whisperer,” detailing a plan of attacking fossil generation with tighter water and solid waste rules in addition to air quality regulations, even the “regional haze” visibility program. None are climate regimes but — the real “tell” — Goffman’s audience was the White House Climate Office.

The U.S. District Court for the District of Columbia will decide whether to force the EPA to release more of that document — with Energy Policy Advocates arguing that there is no privilege for discussions of things agencies aren’t allowed to do. Several FOIA’d records obtained by Power the Future reveal direct communications to Goffman by leading green groups specifically urging EPA tighten “haze” rules as a backdoor for the climate agenda, which the EPA indeed appears to be doing.

West Virginia v. EPA affirmed that the EPA’s claimed authority to dictate “how Americans get their energy,” i.e., to impose a climate agenda, doesn’t exist. If it does, the EPA must point to specific statutory authority — which its chief boastfully abandoned doing weeks before the opinion came down. Yet even with a recent, high-profile opinion restating that what the government cannot do directly it also may not do indirectly, Team Biden is undeterred, and is deploying authorities to this end which no one has ever claimed were granted for the purpose.

So let it be written, so let it be done.

West Virginia was issued in the context of a specific rule, but the limitations it affirmed are not so constrained. The ruling stated that the attempt by the EPA to force the plant-closure agenda Michael Regan described, for which the EPA has offered no authority, presents a “major question” requiring a clear congressional statement. Obviously, neither the Clean Water Act nor a program to improve visibility around national parks qualifies.

Consistent with academic calls for Biden to broadly ignore the Supreme Court, his EPA is trying the sort of “ultimate ‘work-around’” then-Chief of Staff Ron Klain bragged about in trying to impose a vaccine mandate,: to install its radical climate agenda, pretextually tightening every screw to force targeted industries to bend to a governmental will that government is barred from imposing.

It seems inevitable the Court will confront this latest effort to evade constitutional limits. As always, the question will be how much lasting harm the agency can inflict before it is smacked down.

Christopher C. Horner is New York Times best-selling author of four books on “global warming” and environmental policy, law and politics. Horner served on the Trump Transition “Landing Team” with responsibility for EPA. An attorney in private practice for nearly thirty years in Washington, DC, Chris spent twenty years as a senior fellow with the Washington DC think tank Competitive Enterprise Institute, worked in Brussels for the European Enterprise Institute, and now represents policy groups via Government Accountability & Oversight, P.C. Follow him on twitter at @Chris_C_Horner


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3 comments on “Biden’s Backdoor EPA End-Runs the Supreme Court”

  1. Even the “Major Questions Doctrine” is itself a half-compromise with the Devil signed well behind the lines of his domain. SCOTUS needs to apply the “Necessary and Proper” clause to ALL Acts of Congress, not just those AoC that happen to be central to a dispute over regulatory boundaries. My reading of Article I, Section 8 tells me that the debate over statutory authority is not so much a question of the length of the leash that Congress has legislated, but rather whether Congress had the power to create a leash at all.

  2. Perhaps, rather than the Court worrying about what Congress intended, they should be examining which of the limited, enumerated powers delegated to Congress provide authorization for the federal government to act. SCOTUS correctly applied 10A in Dobbs. They need to do so in climate cases, as well.

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