In striking down vast new authority that the Obama and Biden administrations had claimed for the Environmental Protection Agency, the Supreme Court stopped the expansion of, but did not roll back, the powers of bureaucracies to self-seize ever-greater power.
The decision was a clear but limited victory for those wanting to honor the Constitution’s separation of powers and restrain governmental overreach.
At issue, in terms of practical policy, was whether the EPA, when under left-wing political leadership, can force coal plants to choose (essentially) between reducing the amount of energy they produce for public use or spending billions of dollars on building new facilities using alternative energy sources. Either way, of course, the cost of energy would rise considerably.
At issue, in terms of the legal and constitutional questions, was whether the EPA can reinterpret long-standing understandings of the Clean Air Act to assert broader powers than ever before without “clear congressional authorization” for the EPA to exercise such a broad dominion. Here, in West Virginia v. EPA, a 6-3 court rightly ruled that yes, there is an outer limit to an executive agency’s discretionary command and control. Congress, elected as representatives of the people’s interests, is empowered to decide on policies and write laws accordingly; executive agencies are meant only to implement, but not create, those policies.
In this case, the EPA, first under Obama and then under Biden (according to reports of an as-yet-unreleased proposal), wasn’t just filling a gap in Congress’s intent. Instead, it was operating against Congress’s wishes. As the decision’s syllabus put it, the new EPA powers claimed by the Obama and Biden administrations “conveniently enabled [the EPA] to enact a program, namely, cap-and-trade for carbon, that Congress has already considered and rejected numerous times.” (My emphasis added.)
Writing for the court, Chief Justice John Roberts noted that what the EPA proposed was nothing less than, on its own authority, to require “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal.” Roberts wrote that even if such a policy may well be “a sensible ‘solution to the crisis of the day,’” it nonetheless is “not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme” — and certainly not by using the extremely vague and little-used clause of the Clean Air Act that the EPA had dubiously cited as the source of its new power.
The elected representatives of the public absolutely have not decided that the costs of a nationwide abandonment of coal use are worth the alleged benefits of alternative fuels. Our constitutional system is designed to ensure that elected legislators, not presidential appointees and the bureaucracies beneath them, decide such policy questions. Especially at a time when skyrocketing energy costs are seriously threatening family budgets, we should all appreciate why only Congress, not some deputy agency chief, should decide what balance of energy policies is the best.
At issue here are what Justice Neil Gorsuch, in an explanatory concurring opinion, described as “foundational constitutional guarantees.” It is a good thing that the current court is willing to buttress that foundation.
