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E. Calvin Beisner / Dec. 1, 2015

Obama’s Environmental Legacy Hangs in the Balance of the Courts

After running for president on a hard-Left environmentalist platform in 2008, Barack Obama neither attempted nor achieved much in his first term — and for good reason. Actually *doing* what he’d promised would alienate huge numbers of voters as they saw jobs disappear, incomes fall, and costs rise under the increasingly tyrannical bureaucracy of the federal Environmental Protection Agency (EPA), and of course he wanted a second term.

After running for president on a hard-Left environmentalist platform in 2008, Barack Obama neither attempted nor achieved much in his first term — and for good reason. Actually doing what he’d promised would alienate huge numbers of voters as they saw jobs disappear, incomes fall, and costs rise under the increasingly tyrannical bureaucracy of the federal Environmental Protection Agency (EPA), and of course he wanted a second term.

But Obama wants a legacy, and since his failures in foreign affairs and health care policy obviously aren’t what he’ll want to be remembered for, he’s sought it through environmental action.

But he’s faced a problem: a Congress that just wouldn’t go along with him, even when Democrats ruled both House and Senate. It seems members care a little more what the electorate thinks, and for good reason: Congressmen have to go before the voters every other year, and though senators only face election every six years, they don’t face term limits.

So Obama chose to enact his environmental priorities through regulatory channels, using the Department of Energy and, especially, the Environmental Protection Agency. If he couldn’t get cap-and-trade through Congress, he’d enact it through the EPA, come hell or high water, whether he had statutory legal basis or not. (Sound familiar, oh you who bemoan the stroke of his pen on illegal immigration?)

The consequence has been the rapid release of massive new environmental regulations — power-plant mercury emissions, ground-level ozone emissions, Waters of the United States, and now the Clean Power Plan regulating carbon dioxide emissions from existing and new power plants — during his second term, and they’re being challenged on various legal grounds (some have already been struck down, in whole or in part), including most importantly lack of statutory authority and failure to meet requirements for cost/benefit analysis.

Those two fundamental objections are both important, and they both have roots in the same constitutional principle. The power to make laws rests in Congress; the administration has power only to implement and enforce them.

Consider cost/benefit analysis first. It has two components: economic and political.

The economic component is difficult enough, requiring complex economic modeling to foresee the impact of a regulation on health, jobs, income, cost of living, and more.

The political component is even more difficult. It involves determining whether, assuming the cost/benefit analysis is correct, the rule has sufficient political support.

To put that in terms more familiar to basic political philosophy, it means deciding whether the rule would be according to “the consent of the governed.” One of the most fundamental principles of American constitutionalism is that we are a epublic, not a monarchy or a hierarchy, and that means government — and rules are government in action — must be by consent of the governed.

According to plaintiffs in the several lawsuits against the several regulations, the EPA has generally failed to meet cost/benefit analysis requirements. That is probably true. But more important, it has arrogated to itself the task of making the political decision that properly rests not with administrative agencies (whose staff, top to bottom, are unelected and therefore unaccountable to voters) but with Congress.

That’s where the cost/benefit analysis failure bleeds over into the statutory authority failure. It is precisely because the American constitutional republic government is supposed to be by consent of the governed that the making of laws rests with the branch of government most accountable to voters: Congress. This means the political decisions that remain to be made after cost/benefit analysis (however well or poorly done) must be made by Congress, not by administrative agencies.

But the EPA, true to Obama’s promise to fundamentally transform America from a constitutional, representative republic to a near-monarchical bureaucratic hierarchy, it seems, has arrogated that political decision-making to itself by going far beyond any reasonable interpretation of the statutes it purports to implement. By doing so, it jeopardizes the rule of law (that regulations must have proper legal basis, first in laws made by Congress and ultimately in the Constitution) and the constitutional separation of powers (Congress, not the executive branch, makes laws).

Take just the Clean Power Plan, for instance. One of America’s top constitutional law professors, Harvard’s Laurence Tribe — a liberal’s liberal who taught both Barack Obama (apparently to little avail) and Ted Cruz (who seems to have remembered his lessons better) — called the Clean Power Plan “a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority” that

  • “raises serious constitutional questions,”
  • “violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment,”
  • “raises serious questions under the Fifth Amendment … because it retroactively abrogates the federal government’s policy of promoting coal as an energy source,” and
  • “lacks any legal basis and should be withdrawn.”

But it wasn’t, and now it, along with a raft of other regulations, is being challenged in the courts. Time will tell whether Obama’s environmental legacy survives their scrutiny. If Tribe’s opinion is a harbinger, it won’t — and it shouldn’t.

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