> Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible "solution to the crisis of the day." But it is not plausible that Congress gave the EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
It seems pretty clear that Congress does have the authority to delegate, but that the Court ruled that Congress didn't intend to do so. This ruling places the ball firmly in Congress's court, it doesn't rule that Congress cannot act.
[0] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
> Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.
I can find nowhere where they say that Congress cannot delegate broad powers, only that it's not obvious that Congress did or that they intended to. Do you have a citation to the contrary, or are you making assumptions based on the news coverage?
Imagine Congress passes an act next year banning abortion, and creates a new agency to enforce that act. The next year, a new method is invented that can induce abortions. Can that agency regulate it? By the logic of the Court, it can't, because Congress never explicitly authorized regulation of that particular form of abortion (because it didn't exist yet).
https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
If you think that isn't a broad, explicit grant of authority to regulate air pollution from stationary sources, I don't know what to tell you.
The majority on the decision are basically saying, "well, my gut says they didn't mean that much authority, so we're going to shut down this program."
The term "system of emissions reduction" means control technology like scrubbers. What the law says is that the EPA can do is look at the state of the art for things like particulate matter scrubbers, and set an emissions standard based on the reduction that can be achieved using those technologies.
But it's infeasible using current technology to scrub out CO2 from power plant emissions.
So the Majority asserts. The law, however, specifies nothing of the sort and intentionally uses broad phrasing.
The plain meaning of "system of emissions reduction" is "a set of measures that work together to reduce emissions" (as the EPA itself points out). And this is consistent with usage elsewhere in the Clean Air Act: in it, Congress refers to a cap-and-trade setup as an "emission allocation and transfer system." Systems clearly can be things that aren't just control technology.
The Majority is inventing an arbitrary and unsupported narrow definition of system for ideological reasons.
Apart from being clear from the individual statutory provisions, that’s the premise of the statute as a whole. The whole idea was that the EPA could limit emissions to the point that existing point sources could go out and buy equipment to meet the emissions criteria. The statute thus talks about BACT versus RACT and LEAR and whatnot. (I took a bunch of classes in environmental law in law school.)
If you read “system” to be a nonce word that can refer to any possible measure, then the statute makes no sense. The EPA could just pick an arbitrary emissions limit, and demand industry-level restructuring to hit that limit. That’s exactly what Congress was trying to avoid by imposing that requirement.
The statute as a whole clearly delineates between when it means to limit authority to technological systems of control. Elsewhere in different provisions, Congress declined to give the EPA broad authority as it does in 111, using phrasing like
"reflect the greatest degree of emission reduction achievable through the application of technology."
"best available retrofit technology"
"best available control technology"
"maximum achievable control technology"
Congress clearly was conscious of the difference between technological systems and more general ones, and it declined to limit the EPA's authority here to technological systems.
But the fact that those other things are all emissions control technologies strongly suggests that “system of emissions reduction” is referring to a some kind of emissions control technology, not a wholesale change in the operation of the industry.
If a statute addressed SVN, git, Mercurial, and CVS, and then had a catch all referring to “system for version control,” how would you read the meaning of the latter term?
Look at it this way. Wouldn’t it be odd for Congress to go to all the trouble of enumerating all these levels of emissions control technologies that apply in different situations (new sources versus old sources) and then have this catch-all provision that gives the EPA sweeping powers far beyond unrelated to emissions control technologies?
The court has stated if they want to extend their authority to the level they are enacting then congress must pass laws to expressly denote that intention.
States have rights in the original law. They are exercising this right and the court has agreed with them.
I think the last sentence in the original article sum's up why people are truly upset. Remember the court didn't say the EPA can't do these things in the future just that Congress would have to give it the authority.
From the original article:
"It's now clear this court will turn a sceptical eye to agency attempts to cite vague or broad laws to enact any sort of major regulatory changes. That's a significant development, given how difficult it has been for Congress to pass substantive new legislation in recent years. The time when presidents could find unilateral "work-arounds" in existing law may be coming to an end."
[0] https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...
Where, exactly, are you claiming that the EPA ran afoul of the law?
Note the portion that states "taking into account the cost of achieving such reduction". This is in the very first paragraph. The argument is that they have not adequately done this.
It's about damn time if you ask me. As a country we need to hold our elected representatives accountable. We send legislators to congress to legislate not to simply be talking heads who pass the buck.
Also, consistently and repeatedly asking others to research for you is an easy debating tactic used frequently to bury inconvenient facts behind a barrage of requests.
I love it when textualists go anti-textualist.
If people are going to espouse an absolutist ideology, they should at least be consistent.
To use an analogy, nobody is saying that the DOJ needs authority to create drug diversion programs. But this is like the DOJ pointing to the drug laws to justify a sweeping effort to combat the obesity epidemic.
Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.
> Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at 5. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” Ante, at 20, 26. That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, see ante, at 6, 20, backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control.
That's pretty damn explicit.
That's pretty clearly a broad delegation of regulatory authority.
That's entirely incorrect, please read the article.
The majority believes that's too broad a grant and that usage of that authority needs a second authorization from Congress.
This is objectively false, the supreme court just ruled that. Like it or not, they are the sole authority on said issues / decisions.
Four. A tail is a tail, regardless of what you call it.
Congress intended to grant the EPA broad authority to regulate pollution, but the SCOTUS said that that's invalid.
The Supreme Courts job is to determine if something was legal, they were granted the authority by the people. If we want to change that, congress (the people's representation) can amend the constitution.
Congress can also clarify by granted the authority (as the justices explained). At any point in the last 7 years (while this court case has been ongoing), congress could have enacted the laws, they discussed them. The regulations didn't pass. The supreme court pointed that out.
Why would congress put forth these rules if they had already granted the EPA the authorization? -- because the EPA never had such authority.
No, they invented that authority for themselves in Marbury v. Madison[1]. Judicial review, the idea that SCOTUS can decide whether the actions of the executive or legislative branch are legal, is contained nowhere in the constitution.
My reading is that it gives authority to federal courts to determine if a law has or has not been violated. What would the other intent be of creating a judicial branch? (Not said with snark, just curious).
"You give (a) Authority to a system of federal courts to judge whether or not a law has been violated..."[1]
[1] Findlay, B.A. and Findlay, E.B., 1919. Your Rugged Constitution: How Americas House of Freedom is Planned and Built. -.
Congress makes a law. The Executive branch executes the law. The Supreme Court interprets whether that law was broken during its execution.
If you take out that third leg, is the assumption that Congress must revoke the law to provide a check/balance? What if the intent was good, but the execution was bad?
If so, what's the solution? Term-limits on judges? But then doesn't that ensure they will be even more politicized?
There is the 9th and 10th amendment that do not seem to get much coverage in court rulings.
The 9th amendment is made to ensure the federal govt doesn't have sway over unspecified rights; is your thought that the States would enumerate those rights separately?
In any event, I suspect you're right. It seems like the the balance of power may be more biased than the founders intended.
The balance of power has definitely changed since the countries founding. If you read about the Virginia and Kentucky Resolutions of 1798, you don't see states doing this anymore.
Also of course, this is exactly the separation of powers, which is completely fundamental in all western societies.
:laughcryemoji
> Congress can also clarify by granted the authority (as the justices explained). At any point in the last 7 years (while this court case has been ongoing), congress could have enacted the laws, they discussed them.
There's no need to explicitly grant authority for authority already granted. If Congress wanted to change the scope of the EPA's authority, Congress could just as well have passed a law stripping the EPA of that authority. It didn't.
CO2 is not pollution. People and animals breathe it out. Plants breathe it in. Any such thing is obviously not pollution. The EPA calling it "pollution" does not make it pollution, any more than calling a dog's tail a leg makes it a leg.
If Congress wants to grant the EPA authority to regulate things that are obviously not pollution, in order to promote some other policy objective, it needs to say so explicitly. Which is exactly what the Court's opinion says.
Even if you personally dispute it, Congress explicitly granted the EPA the authority to determine what's an air pollutant and what's not:
> For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant—emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;
The fact that all of the parties and judges are calling a tail a leg, still doesn't make it a leg.
And the SCOTUS has the authority to rule on whether the EPA's rulemaking is within its statutory authority or not. Which is what it did today. So why are you objecting? Both governmental entities are exercising their authority. The fact that one such exercise, the EPA's, is one you like, and the other such exercise, the Court's is one you don't like, is irrelevant, according to your own logic, just as it's irrelevant, according to your own logic, that the EPA's rule under review here defies logic, common sense, and the plain meaning of words.
So, sure, I'm criticizing the Court's decision, because it's an incoherent and ideologically motivated decision. Doing so helps remove the mystique of the SCOTUS justices as some kind of apolitical actors in the sytem.
No, you are the one who shifted your ground, not me. You started out arguing that calling a tail a leg doesn't make it one--but you only applied that argument (incorrectly, in my opinion, but that's beside the present point) to the SCOTUS decision you didn't like, not to the EPA rulemaking you liked. Then, when I called you on it, you retreated to the argument that the EPA is just exercising its authority--which applies just as much to SCOTUS. So make up your mind: are you going to base your position on actual logic, common sense, and the plain meaning of words, or on government entities exercising their authority no matter what?
> I'm criticizing the Court's decision, because it's an incoherent and ideologically motivated decision.
I disagree that it is, since it's just pointing out that Congress didn't intend to delegate to the EPA the sweeping authority to restructure the entire energy sector of the economy, even if we accept that CO2 is a "pollutant" for the sake of argument. The statute does not give the EPA authority to regulate pollutants however it wants. It only gives it the authority to do so in certain ways.
That said, however, I'm criticising the EPA's rulemaking on the same grounds that you are criticizing the SCOTUS decision: that it's incoherent and ideologically motivated. Any such criticism presupposes that just because a government entity has the formal authority to do something, doesn't make it right. So it is no answer to my criticism to say that the EPA was just exercising its authority.
Suppose I piss in your drink. Have I polluted it, or will you drink it?
'It's not pollution if it comes out of animals' doesn't make much sense.
That's not the argument I was making. The argument I was making is that the presence of CO2 in the atmosphere is part of a natural process that all living organisms, including us humans, engage in. The presence of your piss in my drink is not.
That said, since these are products of the animal's metabolism, I would not consider them pollution if they're just being exhaled into the surrounding air outdoors. If you bring your animal into my climate controlled clean room and have it exhale the compounds there, that would be different--but I doubt the EPA would be the first line of defense in regulating behavior of that sort.
Meaning, you can claim they are bias, but the EPA still doesn't have said authority.
Nothing you, I or any pundit says will change that. At least until congress grants it said authority. Which as SCOTUS pointed out, congress tried to do, but congress didn't pass the legislation. Now.. why would congress try to pass legislation if the EPA already had said authority?
You're arguing for simply the ability to execute the will to power being the determinant of whether something is right or not. Which is entirely your prerogative, but you should be aware of what you're signing up for.
What is the function of the supreme court? (seriously, what do you think it's job is?)
It said congress didn't authorize this, ask them. I don't see how that's at all controversial.
They did. The House and Senate passed different language, and it never got reconciled.
"The first related to an oversight during the reconciliation of the Clean Air Act amendment in 1990 that resulted in the House and Senate versions of § 7411(d) to never be reconciled, and both versions were codified into the signed law. The House version had stated that because other parts of the Clean Air Act had covered regulation of carbon dioxide, the EPA could not use § 7411(d) to cover carbon dioxide emissions from existing plants, while the Senate version allowed for § 7411(d) to overlap carbon dioxide emissions coverage." - https://en.wikipedia.org/wiki/West_Virginia_v._EPA
Due to a fuckup, SCOTUS got to pick the side they preferred.
Regulatory agencies exist based on the theory that Congress can leave it to agencies to "fill in the details" of a law as part of the executive discretion about how to enforce the law. In the Clean Air Act, Congress gave the EPA authority to pick toxic pollutants to regulate, and to specify the use of particular emissions control technologies like scrubbers.
What this case was about was whether this grant of authority could be fairly read to encompass telling entire industries what power generation mix they must use.
This is not like requiring the CEO to sign off on a minor bug fix. The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization. Even huge companies routinely require executive approval for major new initiatives that will incur major costs to the company.
> (1) The term "standard of performance" means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.
Congress intentionally broadly authorized the EPA to determine and implement the best system for reducing pollutants such as carbon emissions, and used language pursuant to that. Just because it offends certain Justices' sensibilities and ideological predilections doesn't mean that they can choose to ignore clearly stated parts of lawfully enacted statutes.
DEA, ATF, FDA, OSHA, CFPB, CDC, EPA, and FCC would all tend to disagree with this assessment.
There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
> The reasoning of the Court is that industry-wide changes in power generation mix have sweeping effects on the country, and require specific authorization.
Again, the EPA is checked by both the executive branch AND congress through the CRA. Both of which are checked by the people.
Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing? Doesn't that signal that maybe there's a major problem here?
They are picking the conclusion they want to reach and writing the opinions that support those outcomes. They are legislating from the bench.
They wouldn't, at least not to a court's face. You mention "Chevron deference" below, but the whole idea behind Chevron deference is that agencies are exercising executive discretion in enforcing the law, not making new ones.
> There IS a separation of powers and checks and balances. Congress even passed the "congressional review act" in 1996 which allows them by a majority vote to undo an agencies decision if they feel they've stepped too far.
The Constitution gives the power to make laws to Congress. Full stop.
> Rather than apply straight forward and obvious rules that have been around for at least 30 years (Chevron deference), the supreme court has decided to take a politically activist route and instead decide cases based on their own political leanings.
Judges in the mid-20th century engaged in massive political activism to rewrite the Constitution from whole cloth. Undoing that tomfoolery is not itself "political activism."
> You can predict, like clockwork, how the justices will vote on any case with any sort of political implication based on who appointed them. Isn't that distressing?
It distresses me that you can predict how liberal justices will vote on any significant case. It brings me great relief that conservative justices are full of surprises. Just in the last few years, ACB was supposed to overturn Obamacare (she voted to uphold it), Gorsuch and Kavanaugh were supposed to find that the Civil Rights Act doesn't protect sexual orientation, etc.
You're being unfair to the liberal justices here --- there are surprising votes from liberals on QI cases (Rivas-Villegas, Talehquah), habeas (Brown v Davenport), state secrets (Zubaydah), social spending (Vaella-Madero), and immigration (Aleman Gonzalez). You cannot simply predict a liberal justice's opinion from their ideological inclinations. Not even Breyer, who is the most boring liberal justice (he wrote the opinion on Zubaydah).
Meanwhile: Gorsuch is often surprising --- not just on the Native American sovereignty cases, but also on habeas (Shoop) and immigration (Patel, an excellent Gorsuch dissent).
The other conservative justices? Not so much! In particular: you can reliably predict Alito and Thomas, the two most blinkered justices on the court regardless of ideology.
By the way, and apropos nothing here, everyone should read Egbert v Boule, not just because it's absolutely the most ludicrous (and funny) case you'll ever read about that reaches SCOTUS, but because it's a far-reaching and bad decision.
I think an overlooked aspect in all of this is how dramatically judicial philosophy has changed in the past few decades, across the board. Breyer, Kennedy, O’Conner, and Alito were from a generation that believed in the notion of judging as dispensing justice from on high. Younger folks like Kagan are uncomfortable with that even when though they seek to preserve liberal precedents built on that sort of judging.
The result of that is that younger conservatives find these older precedents incomprehensible, and younger liberals have a tough time defending them on the merits. Egbert v. Boule is a good example. I think the dissent probably had the better argument if we think of Bivens as anything more than an aberration that ought to be limited to its facts. But I struggled in reading the dissent to find any reason to treat Bivens as correctly decided. I remember being skeptical of Bivens when I first encountered it as a 1L, but to my recollection the opinion at least offset the tenuous reasoning with flowing judicial rhetoric. Sotomayor’s dissent, written in a modern analytical style, doesn’t even accomplish that.
To be fair, you can do this with judges on both sides of the partisan divide.
It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
At the supreme court level? Yes, because it takes 4 votes to chose which case gets cert and we have 6 activist justices that want to completely rewrite jurisprudence for political gain. How are the liberal justices supposed to vote when the questions often being asked are now "Hey, should we overrule this long standing precedent for political motivations?"
However, standard jurisprudence isn't nearly this bad in the federal court level. The outcomes there can be far more difficult to predict based on who appointed them.
> It's good and appropriate to recognize that the Court is a fundamentally political institution and not some mere interpreter of law, and being distressed over that implies that the Court could be some idealized, nonpolitical institution. That's not a useful way to model the Court and never has been.
While I don't disagree, unfortunately the constitution was setup with the notion that the SC would be above political divide (hence, being unelected and having lifetime appointments.)
I certainly wouldn't mind some sort of constitutional amendment trying to address that. Though, I just don't see it as likely.
Congress did grant the EPA that authority; the ruling is an objection to the principle that Congress can make broad grants of authority.
Delegation of authority is key to every effective organization. Imagine corporations were governed like this, and any time a new service or feature was rolled out, the Board of Directors would have to explicitly sign off on it. Work would grind to a halt.
Which is exactly the point of this ruling, to make the federal government even more ineffectual than it already is as part of an ideological crusade.