Does the EPA — a collection of unelected bureaucrats — have power in America to shut down industries that produce electricity by burning coal or natural gas to prevent climate change, notwithstanding the costs involved to the public, the industry and the workers who will lose their jobs?
In the days when I was in law school, we took a required course known as “Agency.” That course explained the relationship between the “principle” and his “agent.” An agent was a person appointed by the principle to transact certain business on behalf of the principle. The rule was that an agent had only such powers as an agent as were conferred upon him by his principle. The agent was powerless to create his own authority.
A simple example: If I hire a young man for the purpose of mowing my lawn, I have given him authority to mow my lawn. Unless I have given him authority to paint my house, he has no such authority. The agent can’t create his own authority.
If I authorize the young man to cut my lawn, that is his express authority. I am also implicitly authorizing him to use a lawn mower. That would be reasonably expected. He would not by implication, however, be authorized to buy a $3,000 John Deere Garden tractor at my expense to do the job.
Our American Constitution provides that, “all legislative power resides in Congress.” Among the enumerated powers, Congress is specifically granted “Power To provide for the general Welfare of the United States.” To facilitate that purpose, another clause says that Congress has power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
As such, Congress is the “principle.” As such, Congress can appoint an “agent,” if Congress determines that an agent is “necessary and proper” to implement a law it passes. The IRS, the FAA and the EPA are such “agents.” As in the case of any other agent, Congress’ agents have only those powers conferred upon them by Congress.
A few days ago, the U.S. Supreme Court in West Virginia v. EPA ruled in accordance with those principles.
Congress created the EPA to protect the environment. For many years, the EPA set standards to be met by the states to control pollution. Traditionally, industries, such as industries that burn coal to produce electricity, have been required to install equipment calculated reduce the carbon emissions created by the process. The standards created by the EPA have traditionally balanced, among other factors, the cost of installing the most efficient equipment for obtaining the best result in terms of pollution reduction against the cost to the industry of doing so.
But what happens if employing the best and most modern equipment, produces only minimal results in further reducing pollution?
If I authorize the young man to cut my lawn, that is his express authority. I am also implicitly authorizing him to use a lawn mower. That would be reasonably expected. He would not by implication, however, be authorized to buy a $3,000 John Deere Garden tractor at my expense to do the job.
Our American Constitution provides that, “all legislative power resides in Congress.” Among the enumerated powers, Congress is specifically granted “Power To provide for the general Welfare of the United States.” To facilitate that purpose, another clause says that Congress has power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
As such, Congress is the “principle.” As such, Congress can appoint an “agent,” if Congress determines that an agent is “necessary and proper” to implement a law it passes. The IRS, the FAA and the EPA are such “agents.” As in the case of any other agent, Congress’ agents have only those powers conferred upon them by Congress.
A few days ago, the U.S. Supreme Court in West Virginia v. EPA ruled in accordance with those principles.
Congress created the EPA to protect the environment. For many years, the EPA set standards to be met by the states to control pollution. Traditionally, industries, such as industries that burn coal to produce electricity, have been required to install equipment calculated reduce the carbon emissions created by the process. The standards created by the EPA have traditionally balanced, among other factors, the cost of installing the most efficient equipment for obtaining the best result in terms of pollution reduction against the cost to the industry of doing so.
But what happens if employing the best and most modern equipment, produces only minimal results in further reducing pollution?
Can the EPA make a new rule that say that to further reduce pollution, the plant owner must shut down his coal-fired plant, and replace it with a gas-fired plant? But while gas carbon emissions are only half of the of coal emission, what if to “save the planet,” the EPA determines that even carbon emission produced by burning gas, still pollute too much? Can the EPA order a shut-down of all coal-fired and all gas-fired plants, and order a conversion to “green energies?” What if that change-over will cost billions, or even trillions of dollars? What if the cost to the public is dramatically higher energy prices? Inadequate electricity? What if tens of thousands of people are thrown out of work? Can the EPA do that?
In West Virginia v. EPA, the court held, "No."
“Prior to 2015, EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly.“Here, rather than focus on improving the performance of individual sources, it would “improve the overall power system by lowering the carbon intensity of power generation.” … It would do that by forcing a shift throughout the power grid from one type of energy source to another.“Under its newly “discover[ed]” authority, … EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be “best” if coal made up a much smaller share of national electricity generation. And on this view of EPA’s authority, it could go further, perhaps forcing coal plants to “shift” away virtually all of their generation—i.e., to cease making power altogether.”
In West Virginia v. EPA, the court said that if Congress meant to give the EPA such authority, it had a duty to clearly state that it meant to do so.
“Agencies have only those powers given to them by Congress 'Enabling legislation" is generally not an “open book to which the agency [may] add pages and change the plot line.” …“We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.”“To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims."
Before the EPA can destroy a major industry, Congress must clearly give it such power.
Copyright 2022, John Donald O'Shea
First Published in the Moline Dispatch and Rock Island Argus on July 10, 2022
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