SCOTUS, Statutory Delegation and the EPA

July 12, 2022   |   Tags: , ,

Somewhat lost in the excitement surrounding Dobbs (no fundamental right to abortion), Bruen (right to carry a firearm outside the home), and Kennedy (coach’s midfield prayer was not an establishment of religion) was the decision in West Virginia v. EPA. The MSM went into apoplexy over the Court’s latest ruling on the power of the Administrative State. CNN’s headline squawked that “Supreme Court curbs EPA’s ability to fight climate change.” Such alarmism is uncalled for.

The Clean Air Act permits the EPA to regulate power plants by setting a “standard of performance” that must reflect the “best system of emission reduction” that the EPA has determined to be “adequately demonstrated” for a particular category. Since the passage of the Clean Air Act, the EPA has set performance standards to reduce pollution by requiring plants to operate more cleanly. The nation’s coal plants were operating at near optimum efficiency. So in 2015, the EPA sought to require coal plants to reduce energy production or to subsidize an increase in wind, solar, or natural gas production. 

The EPA sought by 2030 to have coal provide 27 percent of national electricity, down from 38 percent in 2014. The EPA estimated that the new requirement on coal plants would entail billions of dollars in compliance costs, the shut down of many of the plants, and the loss of tens of thousands of jobs.

The question in West Virginia v. EPA was whether Congress had delegated to the agency the sweeping authority to decide how much energy production coal should contribute to the national economy. To determine this, the Court invoked the major question doctrine, which requires a clear showing that Congress intended to confer broad authority in an area of substantial economic and political significance. The presumption is that Congress intends to make major policy decisions itself and not leave such matters to administrative agencies.

The Court noted that on several occasions, Congress had refused to pass legislation to amend the Clean Air Act to provide the agency with sweeping authority to pass such regulations. The Court noted that capping carbon dioxide emissions at a level to force a transition from the use of coal to other energy sources might be a wise policy, but the statute before it could not be interpreted to allow such a broad scheme. The Court observed that it was “highly unlikely that Congress would leave to agency discretion the decision of how much coal-based generation there should be over the coming decades.” (Slip Op. at 25).

Suppose Congress wants the EPA to have such power. In that case, all it has to do is pass a statute clearly charging the agency with the power to shut down coal plants and to target a specific amount of coal-generated electricity. This is appropriate since Congress is elected and accountable to the people. In a Republic, elected officials should make these decisions—not a managerial class of “experts” who are unelected and have no accountability to the people. This case demonstrates the dangers of the Administrative State and why James Burnham—as far back as the 1940s–noticed that sovereignty was slipping away from legislatures and was being claimed by various administrative agencies.

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