The Obama Administration’s abuse of executive power is emerging as this Supreme Court term’s defining theme, and on Monday the Justices applied some basic constitutional law to the White House’s anticarbon agenda.
In Utility Air Regulatory Group v. EPA, the Justices feed several major climate regulations into the wood chipper. “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy,” the majority observes, “we typically greet its announcement with a measure of skepticism.”
The ruling amounts to an overdue correction to Massachusetts v. EPA, the 5-4 ruling in 2007 that held greenhouse gases can be “pollutants” under clean air laws that were written decades before the carbon panic. That decision wrongly rewrote the Clean Air Act, but it was also always narrower than liberals made it out to be and never the license for policy rewrites that became the EPA’s interpretation.
The problem for the agency is that the Clean Air Act sets precise emissions thresholds for “major sources” of a given pollutant, defined as more than either 100 or 250 tons annually. Congress had in mind traditional industrial byproducts like SOX or ozone, but the ceilings make no sense for ubiquitous carbon. Any CO2 rule would thus reach well beyond power plants and factories to millions of small carbon sources like hospitals, grocery stores, shopping centers, farms and churches, with penalties of $37,500 per day for violations.
To obey the law as written, the EPA estimated, permit applications under one program would have climbed to 6.1 million a year from 15,000 today, while administrative costs in another would have exploded to $1.5 billion from $12 million. The agency conceded that such a regime would be “unrecognizable” to Congress. Yet in 2009 the EPA regulated anyway and asserted unilateral power to “tailor” the law. It baldly increased the thresholds by as much as a thousandfold to avoid having to supervise elementary schools the same as cement mixers.
Amid a tangle of partial concurrences and dissents, Justice Antonin Scalia wrote the controlling 5-4 opinion striking down this tailoring as illegal. He writes that it is “patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.”
Justice Scalia catches the EPA climateers selectively citing statutes, claiming that they are compelled to regulate by the Clean Air Act but uncompelled to abide by its text. The act is “not a command to regulate,” and neither is Mass. v. EPA, he reiterates. More to the point, “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”