July 1, 2022

THE SUPREME COURT AND BIDEN’S EPA POWER GRAB: A pen and phone are no substitute for a statute duly passed by Congress.

The EPA’s attempt to impose such a scheme on states was particularly bold because Congress had just declined to enact a similar scheme. After the 2008 election, Democrats introduced the Waxman-Markey bill, a sweeping cap-and-trade scheme to reduce carbon emissions dramatically. Even with Democratic supermajorities in both houses, Congress failed to pass the bill.

After his party lost the House in 2010 President Obama turned to the EPA, which in 2015 promulgated the Clean Power Plan. The basic idea of the CPP was to pressure states into shutting down coal and (eventually) natural-gas plants and switch to renewable electricity sources. The agency resorted to an obscure provision of the original Clean Air Act that lay largely dormant for decades. It empowers the EPA to designate a “best system of emissions reduction,” or BSER, for existing facilities. The provision had been used only a handful of times, mostly for solid-waste incinerators, to reduce emissions “inside the fence line” of the facility itself. . . .

One issue the court unfortunately didn’t focus on was the federal coercion of state governments. The EPA normally has the power to do itself whatever it’s asking states to do. But in the CPP, even the EPA admitted that it has no statutory authority to impose directly the measures it was asking states to take. It got around that by using its power to shut down coal plants as leverage to seize control of state policy in areas far beyond its jurisdiction.

Regulators tend to use their power that way if allowed.

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