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Cornwall Alliance / June 8, 2022

Will SCOTUS Rein in the EPA?

The Supreme Court appears poised to reverse or seriously restrict Massachusetts v. EPA.

By E. Calvin Beisner

Back in 1970, Congress passed the Clean Air Act (CAA), and for the next two decades or more actions taken under it significantly improved the quality of America’s air. In 1990 it passed significant amendments to it, and some of these also had salutary effects.

But, combined with an increasing tendency to allow administrative agencies, especially the Environmental Protection Agency (EPA), to impose regulations without clear statutory basis, and a tendency of courts to defer to agencies’ “expert judgment,” the CAA as amended has come to be used to justify regulations that go well beyond its text.

Among those are regulations of greenhouse gas emissions, especially carbon dioxide. Never before treated as a pollutant because it’s nontoxic even at 40 times background levels, carbon dioxide became the EPA’s target because of its role in global warming (a.k.a. climate change). Despite the fact that the CAA expressly excluded carbon dioxide from substances whose regulation it mandates, the EPA argued, on the grounds that global warming poses a substantial risk to American’s health, it had authority to regulate it anyway. In 2007, in its ruling on Massachusetts v. EPA, the Supreme Court ruled that carbon dioxide could be regulated as a pollutant on those grounds.

Now, however, the Supreme Court appears poised to reverse or seriously restrict that ruling. In West Virginia v. Environmental Protection Agency, the issue is whether “in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.”

David Leonhardt, writing in The New York Times this morning, pointed out that the Supreme Court seems poised to render conservative decisions in five major cases (having to do with abortion, guns, climate, and religion).

“A central question about the newly conservative Supreme Court is how aggressively it will restrict federal agencies from regulating greenhouse gas emissions,” writes Leonhardt. He continues:

The broader area of law here is known as administrative law, and it has been a top priority of the Federalist Society, an influential conservative group that has helped mentor and vet judges. Federalist Society members often argue that government agencies should not be permitted to impose regulations that Congress has not specifically enacted. “The view is that Congress should be making the laws and not unelected bureaucrats,” as Adam [Liptak, a former lawyer who covers the court for the Times] says.

For people who value government not by elites, experts, or technocrats but, as our Declaration of Independence put it, by “consent of the governed,” a ruling clipping the EPA’s wings would be welcome. EPA officials are not subject to popular election. Members of Congress are. Consequently, Congress, not agency officials, should make our laws.

In this case, reining in the EPA would also be consistent with the view that, while carbon dioxide does contribute something to global average temperature, the benefits of the energy generation from which it comes, of its fertilizing effects on plants, including food crops, and even of the moderate warming it causes far outweigh the risks to human health and welfare from its moderate influence on temperature.

E. Calvin Beisner, Ph.D., is President of The Cornwall Alliance for the Stewardship of Creation and author of “The Biblical Perspective on Environmental Stewardship.”

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