Supreme Court Reins in Federal Bureaucracy in EPA Case
One of the first things most kids learn about American government is that it has three branches: the legislative, the executive, and the judicial. Generally speaking, the legislature writes the laws, the governor or president executes those laws, and courts resolve disputes over the laws. In recent decades, however, the power to write, execute, and litigate the “law” in the federal government has often fallen to a growing administrative state in the executive branch. Is American law whatever an alphabet soup of federal agencies says it is? Sometimes, yes, and in recent years increasingly so.
Well, buried at the end of an uneventful year for U.S. Supreme Court Rulings is a little case called West Virginia v. EPA. In 2015, the Environmental Protection Agency (EPA) under the Obama administration wanted to comprehensively regulate “greenhouse gases” at American power plants under the Clean Air Act, so it adopted what it called the “Clean Power Plan rule.” The rule put pressure on dirtier coal power plants to shutter and promoted alternative energy plants. The problem with that is the Clean Air Act had only ever been used to enable the regulation and oversight of individual power-generating facilities; Congress had not authorized the EPA to unilaterally reorganize all power-generating capacity of the United States at the grid level.
After seven years of legislative wrangling, constant litigation, and a couple of presidential administrations, the Supreme Court affirmed that the EPA had indeed exceeded its mandate under the Clean Air Act. The court found that when a “major question” like nationwide energy generation is to be decided, Congress must render its decision directly or clearly authorize an agency to act on its behalf, consistent with the law. Here, Congress had not spoken directly or made such a clear delegation to the EPA to give it such expansive powers, and because it had not, the EPA’s dramatic rulemaking was invalid.
To be clear, the court’s ruling doesn’t suggest that the federal government can’t regulate “greenhouse gases,” but it does make clear that if the federal government is going to regulate them, Congress needs to clearly authorize it. That’s a win for small and accountable government; this ruling preserves the constitutional norms of our republican form of government. Each of the three branches is constrained by the Constitution; new laws must be passed through Congress, not by bureaucratic fiat.
How do you stop out-of-control regulations like this? Ideally, by requiring some form of legislative action for them to continue. Regulatory reform is a dense and oftentimes boring policy area, but if I were to suggest one change consistent with state and federal constitutional divisions of power, I think it’d be appropriate for every regulation enacted by an agency to come with a sunset date. The sunset provision would wipe the regulation clean if not adopted and passed into law by Congress or a legislature. That way, every regulation would eventually have to get an up or down vote by the people’s representatives, or else disappear.
Regardless, the Supreme Court’s finding in West Virginia is an important one that hopefully will remind lawmakers that they alone should be making “the law”—and that they can, and should, be held accountable for both the laws they pass directly and any regulations that descend from the statutes they enact.