On Monday, the Supreme Court heard arguments in Utility Air Regulatory Group v. EPA, an examination of the Environmental Protection Agency’s air pollution regulation and standards. The agency, with Barack Obama’s full blessing, has been aggressive in the extreme in labeling and regulating carbon dioxide as a “pollutant,” and now its power to regulate CO2 emissions could stretch beyond automobiles to all levels of industry. Not just power plants, but hospitals, farms, office buildings, and even large homes could become subject to a form of regulation known as stationary source permitting. The negative impact this would have on the economy could be severe, all while any positive affect it will have on the air is negligible.

The high court’s 2007 ruling in Massachusetts v. EPA allowed the EPA to declare carbon a pollutant under the Clean Air Act, which it promptly moved to regulate once Obama took office. The problem here is that the Clean Air Act did not account for regulating CO2 as a pollutant, and now the EPA is using its own arbitrary standards to judge CO2 levels based on unrelated portions of a law that was written 44 years ago and amended only sporadically since.

The question now becomes just how much power should an executive branch agency have to unilaterally rewrite or reshape a law to fulfill its duties. One would think that such power would be severely limited, if not nonexistent. However, the environmental lobby and supporters of a broader EPA mandate believe that because Congress has “failed” to act in updating the law, it becomes the responsibility of the agency to act on its own. It’s a vivid example of Obama’s kept promise to act without Congress if they refuse to do what he wants, like pass “cap and trade” or various other draconian environmental regulations.

But who’s to say that Congress has failed to act? Certainly, air quality in this country is better now than it was when the Clean Air Act was passed. Just because Obama and militant environmentalists weren’t able to sway Capitol Hill with their unproven doomsday climate scenarios doesn’t mean nothing has been done. If the EPA is allowed to unilaterally regulate CO2 now as it sees fit, there is no telling how it, or some other agency, will arbitrarily interpret the statute in the future.