Tag Archive for: EPA

Here Are 7 Major Cases The Supreme Court Has Yet To Decide This Term

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Among the dozens of opinions yet to be released by the Supreme Court this term are cases on affirmative action, compelled speech and social media companies’ liability for content posted on their platforms.

To date, the Court has released 18 opinions, issuing rulings that enabled those facing complaints from administrative agencies to press constitutional challenges in federal court and allowed a death row inmate’s request for a DNA test to proceed. But opinions in 40 more cases are expected to be released before the end of June, including some of the most consequential cases on this term’s docket.

Affirmative Action

Two cases heard in November, Students for Fair Admissions v. University of North Carolina (UNC), and Students for Fair Admissions v. President and Fellows of Harvard, weighed whether universities’ use of racial preferences in the admissions process is constitutional.

After five hours of oral arguments on the two cases, experts noted several justices appeared to be leaning towards ruling against affirmative action, which would force many institutions of higher education to reevaluate their policies.

Some colleges are already taking a second look at their admissions process in anticipation of the decision. The American Association of Collegiate Registrars and Admissions Officers advised its members in January to “begin to examine any admissions or recruitment practices that target populations of a specific race” in preparation for “possible major change.”

Compelled Speech

Lorie Smith, the plaintiff in 303 Creative LLC v. Elenis, challenged the Colorado Anti-Discrimination Act (CADA) because she wants to create wedding websites that reflect her belief that marriage is between one man and one woman. But Colorado’s law, which bans companies deemed public accommodations from restricting services based on sexual orientation, would compel her to also create websites for same-sex couples.

The Supreme Court’s decision in her case will impact creative professionals in 22 states with similar laws, including multiple states with pending lawsuits in the lower courts, clarifying whether the government can compel artists to express a message with which they disagree.

It could also finally put an end to years of legal troubles for Masterpiece Cakeshop owner Jack Phillips. Despite the Supreme Court’s narrow 2018 decision vindicating his refusal to create a custom cake celebrating a same-sex wedding, Phillips is still fighting activist lawsuits—in April, he appealed his latest case, which stems from his decision to decline a request for a custom cake symbolizing gender transition, to the Colorado Supreme Court.

“We’re hopeful the Supreme Court affirms that artists are free to create consistent with their beliefs,” Alliance Defending Freedom Legal Counsel Bryan Neihart previously told the Daily Caller News Foundation.

Biden’s Student Loan Forgiveness Plan

Biden’s plan to grant loan forgiveness to nearly 40 million Americans could be undone, depending on how the Supreme Court’s decisions comes down in Biden v. Nebraska, and Department of Education v. Brown, two cases it heard on February 28.

The Biden administration justifies its plan to cancel up to $10,000 in student loan debt for non-Pell Grant recipients and up to $20,000 for Pell Grant recipients by citing a section of the 2003 HEROES Act that allows the secretary of education to “waive or modify” provisions of student financial assistance programs during a national emergency. Justices appeared skeptical during oral arguments that Congress intended the emergency authority to extend this far, raising separation of powers concerns.

Yet plaintiffs in both cases, a group of six states in the first, and two individual loan holders in the second, were faced with questions of standing that could allow the Court to sidestep the core issue if it is determined they lack the grounds to sue.

Social Media Companies’ Liability

The Supreme Court is considering a case on the scope of Section 230 of the Communications Decency Act of 1996, a hotly-debated law designed to protect online platforms from being held liable as the speaker of third-party content hosted on their website while providing leeway for them to restrict “objectionable” material.

The plaintiff in Gonzalez v. Google, the family of a 23-year old American student killed in a 2015 ISIS terrorist attack in Paris, argues YouTube aided and abetted in the attack through its targeted recommendations of ISIS videos designed to recruit members. The question before the Court is the extent of Google’s liability for content recommended by its algorithms under the law.

During oral arguments on February 21, justices appeared wary of wading into an area of policy Congress has yet to clarify: “We’re not the nine greatest experts on the internet,” Justice Elena Kagan quipped.

Religious Accommodations

In 2019, Gerald Groff sued his former employer, the U.S. Postal Service (USPS), for failing to exempt him from working on Sundays, a religious exemption he argues is required under federal law.

His case, which came before the Supreme Court on April 18, will have broad impacts for religious liberty in the workplace—potentially overturning decades-old precedent that found protections for religious employees could be limited if the accommodation would impose more than a trivial burden on the employer.

‘True Threats’ And The First Amendment

Speech ranging from online jokes to religious expression could be impacted by the Court’s definition of “true threats” in Counterman v. Colorado, a variety of groups who filed amicus briefs noted.

Billy Raymond Counterman was sentenced to four-and-a-half years in prison for repeated Facebook messages he sent to a local musician — saying things like “Die” and “Was that you in the white Jeep?” Counterman says he did not intend his words to be threatening and asks the Court to consider his mental state, rather than deferring to Colorado’s test of how a “rational person” would interpret the statement.

Now, the Court is tasked with answering the question: what constitutes a “true threat?” Oral arguments on April 19 revealed at least some justices are concerned that failing to account for the speaker’s intent will chill speech under the First Amendment.

Environmental Protection Agency (EPA) Water Regulations

The Supreme Court heard oral arguments on October 3 for Sackett v. Environmental Protection Agency (EPA), a case that considers the agency’s “waters of the United States” rule, which defines what waters are federally protected under the Clean Water Act. The case stems from a couple’s 15-year-long legal battle against the EPA, which told them they cannot build a house on land they own near Priest Lake, Idaho, because it contains wetlands.

The decision in Sackett could roll back the extent of the EPA’s authority to regulate under the Clean Water Act and force the Biden administration to reconsider its expansive new WOTUS definition. The administration’s rule has already been blocked in some states by a federal court pending the Supreme Court’s decision.

This article was published by The Daily Caller and is reproduced with permission.

Maricopa County’s Proposal to Comply with the EPA Threatens to Turn Arizona into California

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If you enjoy losing your freedom for a goal that is impossible to achieve, the Maricopa Association of Governments (MAG) has you covered.

MAG recently released its proposed measures to bring Maricopa County into compliance with ozone standards set by the United States Environmental Protection Agency (EPA), and it’s a total disaster. Along with a whole host of regulations on various business activities, the proposed restrictions include banning the internal combustion engine and gas appliances. That’s right, just like in California, they are coming for your cars and your gas stoves. But that’s not all. This proposal would also put limits on things like lawn and garden equipment, motorized boating, and water heaters.

The running narrative for the reason behind all of this is that Maricopa County has become a moderate nonattainment area of ozone limits under the Clean Air Act. This essentially means that, according to the EPA, our ozone levels are too high, and therefore we must adopt certain ozone control measures to get us into compliance. But what they won’t tell you is that the main reason our ozone levels are too high is that the federal government moved the goal posts back in 2015 when the EPA dropped its acceptable ozone levels from 75ppb to 70ppb.

Failure to comply with this EPA mandate could lead to fines, penalties, or the withholding of federal transportation dollars for Arizona. So, MAG contracted with a California-based consulting firm to identify measures to bring us into compliance. And what did they determine in their final report? That we need to cut emissions by 50 percent to achieve the EPA’s standard by the August 3, 2024 deadline. That’s not only impossible, it’s absurd.

An Arizona Department of Environmental Quality (ADEQ) Division Director recently commended Maricopa County for its “fantastic job” in reducing ozone pollution by 12.5 percent since 2000. So, in over 23 years we reduced ozone pollution by 12.5 percent, and now they think we can reduce it by 50 percent in a little more than a year! Keep dreaming, Maricopa County.

We could implement every single one of these destructive measures, and we still won’t come close to achieving the ozone standard—especially by that deadline. After all, look at what happened in 2020 during the COVID-19 pandemic. Ozone levels increased from 79ppb to 87ppb even though business activity was halted, and we saw a dramatic decrease in cars on our roads. Does MAG really believe that putting more regulations on businesses and banning gas-powered cars to achieve the EPA’s outrageous air quality standards will somehow magically work this time?

The reality is that these higher ozone levels are being caused by natural events and international sources (primarily China). That means the issue is very much out of the control of our citizens. Now, as Maricopa County works with the ADEQ and Pinal County to complete review of this proposal and prepare an implementation plan to be given to the EPA by June, it should go back to the drawing board. Our state shouldn’t be forced to suffer billions of dollars in economic damage and destroy our quality of life to achieve an impossible standard. And the people of Arizona certainly shouldn’t have to sacrifice their freedom just so government bureaucrats can turn us into another California.

This article was published by AZ Free News and is reproduced with permission.

Biden’s Fascistic EV Edict

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President Joe Biden is set to “transform” and “remake” the entire auto industry—“first with carrots, now with sticks”—notes The Washington Post, as if dictating the output of a major industry is within the governing purview of the executive branch.

The Environmental Protection Agency is proposing draconian emissions limits for vehicles, ensuring that 67% of all new passenger cars and trucks produced within nine years will be electric. This is state coercion. It is undemocratic. We are not governed; we are managed.

In fascist economies, a powerful centralized state—often led by a demagogue who plays on the nationalistic impulses of people—controls both manufacturing and commerce and dictates prices and wages for the “common good.” Any unpatriotic excessive profits are captured by the state. All economic activity must meet state approval. And crony, rent-seeking companies are willing participants.

Now, I’m not saying we already live in a fascist economic state. I’m just saying the Democratic Party economic platform sounds like it wishes we were.

The coverage of Biden’s edict has gone exactly as one might expect. “Biden makes huge push for electric vehicles. Is America ready?” asks Politico, for instance.

The conceit of so much modern media coverage rests on the assumption that the Left’s ideas are part of an inevitable societal evolution toward enlightenment. The only question remaining is when will the slaw-jawed yokels in Indiana and Texas finally catch on.

I’m sorry, EVs are not a technological advancement—or much of an environmental one—over vehicles with internal combustion engines. Most of the comforts EV makers like to brag about have been a regular feature of gas-powered cars for decades. At best, EVs are a lateral technology. And, as far as practicality, cost, and comfort go, they’re a regression.

If EVs are more efficient and save us money, as administration officials claim, manufacturers would not have to be compelled and bribed into producing them.

The problem for Democrats is that consumers already have perfectly useful and affordable gas-powered cars that, until recently, could be cheaply fueled and driven long distances without stopping for long periods of time.

Fossil fuels—also the predominant energy source used to power electric cars—are the most efficient, affordable, portable, and useful form of energy. We have a vast supply of it. In recent years, we’ve become the world’s largest oil producer. There are tens of billions of easily accessible barrels of fossil fuels here at home and vast amounts around the world.

By the time we run out, if ever, we will have invented far better ways to move vehicles than plugging an EV battery—which is made by emitting twice as many gases into the air as a traditional car engine—into an antiquated windmill.

“I want to let everybody know that this EPA is committed to protecting the health and well-being of every single person on this planet,” the EPA’s Michael Regan explained when announcing the edicts.

No one is safer in an EV than a gas-powered vehicle. The authoritarian’s justification for economic control is almost always “safety.” But the entire “safety” claim is tethered to the perpetually disproven theory that our society can’t safely—and relatively cheaply—adapt to slight changes in climate.

If the state can regulate “greenhouse gases” as an existential threat, it has the unfettered power to regulate virtually the entire economy. This is why politicians treat every hurricane, tornado, and flood as an apocalyptic event. But in almost every quantifiable way, the climate is less dangerous to mankind now than it has ever been. And the more they try to scare us, the less people care.

So let the Chinese communists worry about keeping their population “safe.” Let’s keep this one innovative, open, and free.

This article was published by The Daily Signal and is reproduced with permission.

Legislation by Any Other Name

Estimated Reading Time: 8 minutes

West Virginia v. EPA is a blockbuster ruling of great consequence to the current reign of the administrative state over the lives of Americans. It restores core foundational principles that have been ignored or trampled for far too long—namely that lawmaking power is vested in Congress and cannot be usurped by agencies engaged in off-road driving. Its holding will rein in other lawless initiatives waiting in the wings, prominent among them, the Securities and Exchange Commission’s recent implausible assertion that Congress’s grant of power in 1933 and 1934 to regulate exchanges to ensure honest markets gives it power today to impose Environmental, Social and Governance (ESG) regulations on publicly-traded companies.

How the Case Came About

This dispute about the power of the Environmental Protection Agency (EPA) was close to a decade in the making, reaching back to the Obama Administration’s 2015 adoption of a Clean Power Plan (CPP). Simply put, the question before the court was whether the EPA could deploy an obscure provision of the 1970 Clean Air Act to reconfigure what components should compose the nation’s entire electric grid. Prior to that time, the “best systems” section of the 1970 Act had only allowed EPA to set source-specific emission levels for existing coal, natural gas, and renewable energy plants. Under the Obama plan, what once had been EPA’s power to require scrubbers had now become the agency’s unilateral power to convert entire power plants from one type of energy to another—or eliminate them altogether.

The rule never went into effect because the Supreme Court issued a stay of this extraordinary power grab in early 2016. The Obama CPP was then repealed by the Trump administration in 2019 and replaced with the Affordable Clean Energy Rule (ACE) which more modestly sought to make coal-burning energy plants cleaner and more efficient. But on January 19, 2021, ACE, in turn, was struck down by the D.C. Circuit Court of Appeals on the eve of a new administration, leaving EPA wide open to put into effect a reading of “best systems” that empowered the agency to orchestrate the composition of the energy sector.

The decision—and the dissent—both open with a scuffle over standing and mootness common in environmental litigation that veers from one President’s vision to the next. The government argued that as there was no plan in place, the Court should not rule at all. Such strategic “mooting” explains how such disputes can and do drag out for years and through changes of administration. Unfortunately, this bob-and-weave embroils the courts in a protracted dance with the Executive that shuts Congress out altogether.

Accordingly, the Court applied its mooting precedents (which provide that a policy that may recur is justiciable) to halt this decade-long waltz and reach the core question of “who decides?” national energy policy. While this justiciability question could have gone either way, the Court made the right judgment call to end this dispute because neither EPA nor the Courts possess the power to determine national energy policy. Protracted litigation based on the fiction that Congress has somehow delegated this power to the EPA only lets Congress off the hook, serving the interests of no one but the activists and the lawyers. Indeed, one of the best consequences of this case is that Congress will have to decide our energy policy to more lasting effect than “plans” imposed and replaced by politicized agency bureaucrats. And that decision will be with the consent of the governed as it must be, under the Constitution.

What is a “System”?

In West Virginia, EPA explicitly proffered and vigorously defended its 2016 reading that “best systems” permits the agency to engage in macro regulation that includes determining what site- and source-specific plants will make up the energy sector. Both the majority opinion and the concurrence refused to buy this reading of the statute. In the majority’s view, EPA can only set standards within the bounds of a given energy source’s existing “system.” To the dissent, “system” means, well, the whole power industry, with which EPA can tinker like some distant autocrat orchestrating shutdowns of coal plants, and pop-ups of wind and solar farms. The dissent even argues that the EPA could “simply require[e] coal plants to become natural gas plants under this power to determine ‘best systems.’” The majority demurs, eyebrows raised, noting that the agency has never ordered anything remotely like that, and “we doubt it could.” The 1970 Section 111(d) only empowers EPA to guide States in “establishing standards of performance” for “existing source[s],” not to direct existing sources to effectively cease to exist.”

The majority recognized that EPA’s seizure of life and death control over the power plants of America is “eyebrow raising,” invoking a well-established line of precedent which rejects such self-conferred expansions of agency power. For example, in 2000, the FDA could not self-assert power to regulate tobacco. More recently, the Court ruled that the Centers for Disease Control had been given no power by Congress to regulate state housing policy and invalidated CDC’s shocking nationwide shutdown of state court evictions. The Court must enforce these guardrails, or our polity will be at the mercy of bureaucrats gone wild, as our national experience of the plague years vividly demonstrated, at incalculable and continuing cost to Americans.

The majority also explicitly invoked the Major Questions Doctrine, which counsels that Congress must decide such major law and policy questions, not agencies straying far out of their regulatory lane. In doing so, it quoted two respected scholars of the administrative state’s witty formulation: agencies only have the powers expressly given to them by Congress, and their organic statutes are not an “open book to which the agency [may] add pages and change the plot line.”

The Court’s decision to read “system” in this narrow, sensible manner rather than endorse EPA’s grandiose vision (that, by the way, no one seriously believes Congress conferred upon it in 1970), has resulted in a firestorm. Heightened rhetoric swirls around West Virginia: President Biden described the decision as “devastating,” accusing the Court of “sid[ing] with special interests that have waged a long-term campaign to strip away our right to breathe clean air.” “Supreme Court Declares War on Governing” gasped Vanity Fair. “The U.S. Supreme Court has declared war on the Earth’s Future,” keened The Guardian. Mainstream media and the climate change clerisy have accused the Supreme Court of a meanspirited, anti-environment, military attack on the planet and administrative governance. The Twittersphere is abuzz with doomsday.

Deconstructing the Dissent

The stridency that now pervades the public discourse disturbingly starts with the first words of the dissent, which incant the almost religious tenets of the Climate Change Creed, prefaced with its solemn assertion that those tenets “are no longer subject to serious doubt.”

And what are these tenets? Unequivocal, not-to-be-questioned human influence in global warming. This malign human influence brings death, coastal inundation, and erosion, severer and severer hurricanes, floods, droughts, ecosystem destruction, and disruptions in the food supply. Children born in 2022 will witness the Eastern seaboard slide into the Atlantic. This weather may “force mass migration, political crises, civil unrest, and even state failure.” By the year 3000, 4.6 million excess yearly deaths could be caused by climate change.

The Supreme Court declined to accede to “experts” flexing unilateral power to control the energy sector.

This parade of horribles serves to distract the reader from noticing that the very next sentence of Justice Kagan’s dissent is untrue. She asserts that in 1970, “Congress charged EPA with addressing those potentially catastrophic harms” by enacting Section 111 of the Clean Air Act. Nonsense. The very text of the statutory provision provides that EPA must apply best systems to “existing sources.”

Moreover, in the 1970s, the scientific consensus was that the climate was facing another ice age, with Newsweek reporting “a significant chilling of the world’s climate, with evidence accumulating ‘so massively that meteorologists are hard-pressed to keep up with it.’ … shorter growing seasons and poor crop yields, famine, and shipping lanes blocked by ice, perhaps to begin as soon as the mid-1980s. Meteorologists … were ‘almost unanimous’ in the opinion that our planet was getting colder.” Some alarmist scientists were offering up potential solutions such as melting the arctic ice cap by covering it with black soot—by human agency! So much for relying upon experts! Congress simply did not have the dissent’s apocalyptic vision in mind—at least not as to warming—in 1970. Clearing smog was Congress’ sensible and admirable goal.

Kagan’s dissent ends with a glowering scold: “The stakes here are high,” followed by: “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.” The dissent is right that the stakes are high, but dead wrong in its unfair accusation. The majority and concurrence have insisted that Congress must be the decisionmaker on these major questions, and that neither the Court nor an “expert” agency—nor a President with a pen and phone—can be the decider.

The majority’s quiet, reasoned insistence upon observing the foundational principles of representative government and healthy skepticism of the EPA’s lunge for power—at a time when those foundational concepts are being flouted by agencies prepared to expand far beyond their remit, could not be more important and timely.

Most important constitutional cases boil down to “Who decides.” We all know that Congress is supposed to make the law. Agencies must never make such momentous decisions. The lawmaking power is vested in Congress, and it uniquely has the tools to gather facts, engage in debate, weigh the myriad interests at stake, and then legislate—or not. And it is always accountable, along with the President in the exercise of presentment power—for the outcome. In sum, this case is about one thing, and one thing only: Consent of the governed.

It’s that simple. EPA’s own calculations of the costs of the CPP acknowledged billions in compliance costs, higher energy prices, the retirement of dozens of coal-fired plants, and the elimination of tens of thousands of jobs across economic sectors. If you are a resident of West Virginia who finds your coal-powered plant shut down, jobs lost, utility costs, and gas and food prices skyrocketing by double digits, who can you blame? If the dissent had its way, these economic displacements would be imposed by distant, unaccountable bureaucrats who, by the way, may be just as fallible as any politician as to the wisdom of a plan entailing such massive scientific, social, environmental, and economic impacts. This is why law-making should be hard and made through a combination of powers of the two politically accountable branches.

Sri Lanka

Speaking of the fallibility of experts, international news would soon abound in irony. Just two weeks after the dissent’s litany of catastrophe, news of, wait for it, “significant disruptions in the food supply … mass migration … political crises, civil unrest and … even state failure” erupted from Sri Lanka. The cause, as reported by Michael Shellenberger:

The underlying reason for the fall of Sri Lanka is that its leaders … fell under the spell of Western green elites peddling organic agriculture and “ESG,” which refers to investments made following supposedly higher Environmental, Social, and Governance criteria. Sri Lanka has a near-perfect ESG score of 98—higher than Sweden (96) and the United States (51). What does having such a high ESG score mean? In short, it meant that Sri Lanka’s two million farmers were forced to stop using fertilizers and pesticides, laying waste to its critical agricultural sector. …

The numbers are shocking.

One-third of Sri Lanka’s farmlands were dormant in 2021 due to the fertilizer ban. Over 90 percent of Sri Lanka’s farmers had used chemical fertilizers before they were banned. After they were banned, an astonishing 85 percent experienced crop losses. Rice production fell 20 percent and prices skyrocketed 50 percent in just six months. Sri Lanka had to import $450 million worth of rice despite having been self-sufficient just months earlier. The price of carrots and tomatoes rose fivefold. All this had a dramatic impact on the more than 15 million people of the country’s 22 million people who are directly or indirectly dependent on farming.

Americans should rejoice that its Supreme Court declined to accede to “experts” flexing unilateral power to control the energy sector—to be followed in short order by ESG dominion by a Wall Street regulator. Understanding that this flawed ideology directly led to the tragic humanitarian crisis in Sri Lanka is essential to the exercise of enlightened franchise by Americans refusing to submit to the wokeism that has already imposed enormous costs upon Americans. The SEC’s ESG rules suffer from the same flaws as the CPP—a lack of statutory authority, arrogation of agency power over a major—and debated—question, and enormous economic disruption that would affect nearly every aspect of the country’s economic and political future. The principles restored by the Court in West Virginia foreclose SEC’s costly ESG regulation.

The Spirit of Liberty

In 1944, as the world was engulfed in the most widespread and destructive war in history, brought on by the horrors of unchecked autocratic rule, Judge Learned Hand tried to define what comprised the spirit of liberty.

The spirit of liberty is the spirit that is not too sure that it is right; the spirit of liberty is the spirit that seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

In other words, “Experts, bureaucrats, administrators, consider that you might be wrong!” David Mamet notes that when the experts get it wrong, it is the rest of us who pay. As he puts it, [t]he virus here is government—or at least the incompetents who advise our rulers and cannot admit the legitimacy of dissension,” an all-too-apt description of the tone and reliance upon the expertise of the West Virginia dissent. The Covid years have been a crash course in the incalculable and enduring damage caused by turning government over to experts. The humanitarian disaster in Sri Lanka is a sobering here-and-now reminder that autocratic imposition of expertise by unchecked bureaucrats comes not only at great cost to a society’s well-being and economy but also to its liberty.


This article was published by Law & Liberty and is reproduced with permission.

EPA Now Stuck Between A Rock and A Hard Place on CO2

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EPA is stuck. What they will now do is anybody’s guess. Enjoy their dilemma!


There are lots of happy reports on the Supreme Court’s ruling throwing out EPA’s so-called Clean Power Plan. Some go so far as to suggest that EPA is barred from regulating power plant CO2 emissions.

It is not quite that simple and the result is rather amusing. EPA is still required to regulate CO2 under the terms of the Clean Air Act, but that Act provides no way to do that regulation. The Clean Power Plan attempted to expand an obscure minor clause in the Act to do the job but SCOTUS correctly ruled that the clause does not confer that kind of massive authority.

EPA is between a rock and a hard place. It should tell Congress that it cannot do the job and needs a new law, along the lines of the SO2 law added to the Act in 1990, curbing emissions. But such a law has zero chance of passing in the foreseeable future.

EPA is stuck. What they will now do is anybody’s guess. Enjoy their dilemma!

Here is a bit more detail on the situation.

On one hand, EPA’s legal mandate to regulate CO2 under the Clean Air Act is clear. First the (prior) Supreme Court ruled that CO2 was a “pollutant” under the Act. This is because buried in the 1990 Amendments was a clause adding causing climate change to the definition of “pollutant”. The Court accepted the government’s claim that the CO2 increase could cause climate change. The new Court could change this but is unlikely to do so.

Given CO2 is a pollutant under the Act, EPA was required to decide if it was dangerous to human well-being or not. It then produced an “endangerment finding” saying that CO2 was indeed a threat.

Given these two steps, the Act then requires EPA to regulate CO2. It has been trying to figure out how to do so ever since.

The deep problem is that the Clean Air Act specifies very specific regulatory actions, none of which work for CO2. This is because CO2 is nothing like the true pollutants that the Act was developed to regulate.

The Act’s mainline mechanism is the NAAQS (pronounced “nacks”) which stands for National Ambient Air Quality Standards. These standards specify the ambient concentration levels allowed for various pollutants. Carbon dioxide’s cousin carbon monoxide is one of these pollutants. Locations that exceed the NAAQS receive stiff penalties.

Clearly, this mechanism assumes that local levels are due to local emissions, which can be controlled to achieve and maintain compliance.

But CO2 is nothing like that. There is no way America can control the ambient CO2 level. Even if humans are causing that level (which is itself controversial), it is then based on global emissions. CO2 is not a local pollutant.

For a CO2 NAAQS EPA could either set the standard below the global level or above it. If below then all of America would be out of compliance and subject to the Act’s penalties, with no way to comply. It is very unlikely that the Court would allow these universal endless penalties.

If the CO2 NAAQS were above the present level then there would be no legal basis for EPA taking any action, since compliance was complete.

So the NAAQS mechanism simply does not work.

Another major mechanism is to control the emissions of what are called “hazardous air pollutants” or HAPS. EPA explains it this way:

“Hazardous air pollutants are those known to cause cancer and other serious health impacts.  The Clean Air Act requires the EPA to regulate toxic air pollutants, also known as air toxics, from categories of industrial facilities.”

But CO2 is nontoxic, so not a HAP. In fact, our exhaled breath contains over one hundred times the ambient level of CO2, that is over 40,000 ppm. Clearly, if ambient 400 ppm CO2 were toxic we would all be dead. It would be absurd for EPA to try to classify CO2 as a HAP. No Court would stand for it.

The only other piece of the Clean Air Act that EPA might try to use is called “New Source Performance Standards” but as the name says they only apply to new construction (or major modifications). The myriad existing fossil-fueled power plants that supply our daily juice would not be covered. Even worse if EPA drove up the cost of new gas-fired plants we would likely restart the host of retired coal-fueled plants. What a hoot that would be!

So there you have it. EPA bought itself CO2 as a Clean Air Act pollutant, but there is no way under the Act to regulate it. To mix metaphors, EPA is all dressed up with no place to go. The Supreme Court decision returned EPA to its regulatory dead end.

I find this ridiculous situation to be truly laughable. What were they thinking? Does the EPA Administrator understand this? Has he told the President? How about Congress?

EPA’s problem with CO2 is much deeper than the latest Supreme Court Decision. The Clean Air Act simply does not work for CO2. What will EPA do?


This article was published by the Heartland Institute and is reproduced with permission.

SCOTUS Message to EPA, Agencies: You’re Not Legislatures

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A landmark June 30 Supreme Court ruling in favor of plaintiff states in West Virginia v. EPA will have enormously profound and far-reaching separation of powers implications limiting de facto lawmaking powers of executive branch-controlled regulatory agencies.

Whereas certain special interest groups are vehemently criticizing the court’s 6-3 vote determination as “anti-environmental,” this is a grossly unfair mischaracterization of deliberative substance.

Rather, the majority ruling was founded on a central constitutional principle that Congress alone has legislative authority to decide major policy issues with sweeping impacts.

A related legal “Major Question Doctrine” (MOD) holds that federal agencies must point to clear authorization from Congress before exercising new significant and transformative regulatory powers.

The controversy that gave rise to this case and decision can readily be traced back to a war on coal agenda clearly articulated by then-Democrat presidential candidate Barack Obama during a 2008 interview with the San Francisco Chronicle’s editorial board: “So if somebody wants to build a coal-powered plant, they can; it’s just that it will bankrupt them, because they’re going to be charged a huge sum for all that greenhouse gas that’s being emitted.”

That promise was echoed by then-presidential nominee Hillary Clinton, who also pledged that, “We’re going to put a lot of coal miners and coal companies out of business.”

The subsequent Obama-Biden administration, including Clinton as secretary of state, accomplished great progress toward that goal under the auspices of its congressionally approved Clean Air Act declaring CO2 plant food a climate “pollutant.”

Although the 2015 Obama “Clean Power Plan” (CPP) that would have required states to reduce CO2 emissions from the generation of electricity primarily by forcing them to shift away from coal-fired plants never took effect, regulatory pressures were nevertheless very successful.

The U.S. coal industry lost 50,000 jobs during Obama’s first term, and another 33,000 during his second…about 11,000 in his last year alone.

By the end of Obama’s presidency, at least 400 coal mines had been shuttered.

Although the Supreme Court had blocked CPP implementation in 2016 by a 5-4 vote, the legal fight continued. After Donald Trump took office, and his EPA repealed the Obama-era plan altogether, 22 mainly Democrat states, the District of Columbia, and some of the nation’s largest cities sued back for its regulatory reintroduction.

In the recent West Virginia case joined by 18 mostly Republican-led states and coal companies, the Supreme Court ruled that CPP exceeded the authority Congress granted to EPA in the Clean Air Act which had been broadly interpreted by the agency as allowing a “beyond the fence line” approach.

Removing the original “inside the fence line” limit essentially allows EPA to fashion any “system” it chooses, leaving every energy production and user industry vulnerable to periodic politically directed White House whims which preferentially dictate winners and losers

This overreach would have allowed EPA to set standards that are impossible to meet at coal-fired plants, using a national cap-and-trade program covering all electricity production, grid management, and consumer use.

If allowed, EPA’s Clean Air Act would have been transformed to enable the agency to impose regulations cloaked as “environmental protection” that put them unaccountably in charge of our nation’s entire energy industry.

To be clear, the June 30 SCOTUS decision does not reverse the court’s earlier ruling authorizing EPA to regulate greenhouse gases — primarily interpreted to mean CO2 emissions — as “air pollutants” under the Clean Air Act.

According to the ruling written by Chief Justice John Roberts: “…the only interpretive question before us, and the only one we answer, is more narrow; whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no.”

Chief Justice Roberts’ opinion stated that while “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,”’ the Clean Air Act nevertheless doesn’t give EPA the authority to do so.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he wrote.

The West Virginia v. EPA ruling comes at a particularly critical time when the current Biden administration is routinely using federal agencies under its control to unilaterally usurp and/or ignore congressional powers and authority in other major policy arenas.

Examples include Homeland Security’s transparently open illegal migrant southern border policy, Department of Interior withholdings of federal oil and gas leases and permits, and the January Supreme Court blockage of an OSHA COVID vaccine-or-test rule for employees of large private companies.

The West Virginia ruling should not, however, be viewed as exclusively a conservative victory. Looking forward, American democracy is a sure winner.

Let’s credit some wise advice from Justice Stephen Breyer, a Bill Clinton nominee generally associated with the liberal wing of the court who is retiring this very same day on June 30.

In his book “The Authority of the Court and the Peril of Politics” (2021), Justice Breyer wrote: “The accumulation of powers, legislative, executive, and judiciary, in the same hands, whether of one or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”


This article was published by  CFACT, Committee for a Constructive Tomorrow and is reproduced with permission.