Last week, the Environmental Protection Agency (EPA) finalized a new rule requiring large emitters of carbon dioxide and other greenhouse gases (GHGs) to monitor and report their annual GHG emissions. Yesterday, the EPA released a proposed rule to regulate GHG emissions from major sources of GHG emissions under the Clean Air Act. If finalized, this would be the first fedral regulation limiting GHG emissions from stationary sources. (More from the WashPost and NYT.)
The threat of federal regulation of GHGs under the Clean Air Act (CAA) is supposed to be a major inducement for industry to support cap-and-trade regulation. The CAA was not drafted with GHG controls in mind, and is not well suited to cost-effective GHG control. Some business types want climate change legislation to replace CAA rules with a more efficient and workable regulatory regime. For this reason, quite a few companies have supported climate change legislation. (Still others see such a bill as an effective means to gain competitive advantage within their industry.) Interestingly enough, the draft legislation circulated in the Senate this week does not preclude EPA regulation of regulation of GHGs under the CAA. In other words, industry could face both a cap-and-trade regime and CAA regulation (the latter of which could severely compromise any efficiency benefits provided by the former).
An interesting aspect of the EPA’s proposed rule to limit stationary source emissions is the agency’s creative effort to limit the regulation’s applicability in the face of fairly explicit statutory text. The relevant provisions of the Clean Air Act define major stationary sources as those that emit (or have the potential to emit) 100 or 250 tons per year of regulated pollutants (depending on the type of facility). Yet the EPA’s rule would only apply to facilities that emit 100 times this amount of carbon dioxide or carbon-dioxide equivalent. (Anything less would be de minimis, I suppose.)
The reason for limiting the rule’s application in this way, EPA explicitly acknowledges, is that it would be virtually impossible for the agency impose the permitting and regulatory requirements to all facilities that meet the statutory threshold. Rather than try to regulate tens of thousands of residential and commercial buildings and small businesses, the EPA wants to focus its efforts on several thousand large industrial facilities. There’s no statutory text to support this decision, so the EPA relies on the doctrine of “administrative necessity” and the need to avoid “absurd results.” (I also suspect the EPA is aware that a more expansive rule covering small businesses, apartment buildings, etc. would make it almost certain that a cap-and-trade bill would preclude GHG regulation under the Act.)
Funny, though, that such administrative concerns — indeed the sheer unworkability of trying to impose GHG controls on such a scale — did not convince a majority of the Supreme Court that the CAA did not apply to GHGs in Massachusetts v. EPA (nor did it convince those who sued the EPA to force GHG regulation, including some who now work for the EPA). Nor was it that long ago that the Bush EPA was excoriated for its, shall we say, “creative” reading of the CAA’s stationary source provisions to constrain the scope of the Act’s stationary source regulations. The U.S. Court of Appeals for the D.C. Circuit was not particularly receptive to the Bush Adminstration’s efforts to evade the text of the Act. Will its response to the Obama Administration’s equally atextual climate rules be any different?
troll_dc2 says:
But who would bring the lawsuit challenging the EPA’s proposed regulation? Not the small emitters, that’s for sure. And I doubt whether the people who sued the Bush EPA and now have friends at the Obama EPA would do so either. Industry that is subject to the new regulation would not have standing to complain that the little guys are not being held to the same standard.
The D.C. Circuit won’t be able to invalidate the proposed rule (once it becomes final) without a petitioner to challenge it.
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October 1, 2009, 9:12 amOren says:
Our system of government does not allow the other branches to discard statutory commands because they think it is impractical or unworkable. If Congress passes a law directing the Treasury to mint all new money in pennies, the Treasury damn well better mint all new money in pennies.
If the statute is unworkable, Congress should fix it.
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October 1, 2009, 9:31 amTuck says:
Ah the Industrial Age. It was fun while it lasted...
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October 1, 2009, 9:36 amMartinned says:
That was my main qualm with this post, too. Unlike the Courts, an executive agency gets to interpret its governing statutes with practicality in mind, as well as plain meaning.
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October 1, 2009, 9:47 amChrisTS says:
Not all fun, though.
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October 1, 2009, 9:48 amAllan Walstad says:
The very fact that interpreting CAA to apply to GHGs results in absurdity is a clear indication that the intent of the legislation was not to regulate GHGs. Yes Congress should fix the law if it wants, but meanwhile the attempt to regulate GHGs under the CAA looks like a typical political power grab.
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October 1, 2009, 10:10 amOren says:
So in my hypo, can the Treasury mint money in other denominations? I don’t think so.
Congress ought to vest appropriate discretion in the Treasury as to the distribution of denominations but they certainly don’t have to.
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October 1, 2009, 10:14 amHouston Lawyer says:
Ponder whether the Supreme Court may change its mind when confronted with the sheer absurdity of the entire situation. When Congress wrote the law, they targeted what people easily recognized as pollutants. Hence the existing tonnage of emissions that must be regulated make sense. Trying to apply that regulatory scheme to the very air itself takes a level of creativity bordering on farce.
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October 1, 2009, 10:18 amOren says:
Legislation is made from words, not intent. The 1970s Congress didn’t intend to regulate GHGs, but they wrote a statute that does.
If Congress passes a law that says “No dog shall enter the capitol building at any time”, the SaA cannot say “Well, they didn’t intend to include bomb-sniffing dogs so they are OK”. They certainly didn’t intend to exclude bomb-sniffing dogs but the statute does and that’s the goddamned law.
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October 1, 2009, 10:18 amTuck says:
ChrisTS: “Not all fun, though.”
Better than the alternatives. “Nasty, brutal, and short” is not my idea of fun.
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October 1, 2009, 10:20 amfwb says:
Do they have to report water vapor, the #1 and most important of the GHGs?
What BS!!!
Glad I have a forum to teach that man-caused GCC is BS.
PS: There are no grants of authority to delegate any previously delegated authority to another body. Any time Congress or any other branch delegates authority that branch is committing a breach of trust. Congress was granted legislative authority and We the People have every right to expect and require them to exercise that power in EVERY instance. Congress abrogates its duties when it allows an agency with no legal authority to make rules and/or regs.
They will answer to a higher power.
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October 1, 2009, 10:20 amFedya says:
... the law would be found to violate the Americans with Disabilities Act, since it would ban seeing-eye and other service dogs. ;-)
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October 1, 2009, 10:22 amOren says:
You should tell that to the Congress of 1789, they didn’t get the memo.
Either that, or Congress has been delegating rule-making authority since the birth of the Republic. You know, whichever.
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October 1, 2009, 10:26 amOren says:
As applied to seeing-eye dogs (maybe). Doesn’t help the bomb-sniffing dogs though. :-)
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October 1, 2009, 10:28 amMartinned says:
No, but an executive agency may trade practicality against plain meaning more readily than a court.
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October 1, 2009, 10:35 amMartinned says:
How about seeing eye dogs? There has to be a level of absurdity where the courts may say that a literal reading of the statute creates a result that Congress could not have wanted, a result that no reasonable person would read into the statute.
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October 1, 2009, 10:38 amAllan Walstad says:
The purpose of the words is to convey the intent. Writing a law is not like shooting a bullet (“sorry Mom, I was aiming at the burglar”) It may not be possible to pin down the precise intent, of course, but there must be reasonable limits to interpreting the words to legitimize a clearly unintended (and in the case at hand, ultimately self-contradictory) outcome.
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October 1, 2009, 10:46 amOren says:
Congress wrote what they wanted and wanted what they wrote (paraphrasing from Dr. Suess — ‘I meant what I said, and I said what I meant’). To say Congress didn’t want to pass the law they wrote is to twist the meaning of normal words beyond recognition
[ By the way, Congress does not legislate ends, only means. The fact that a statute has not resulted in the ends that Congress may have envisioned is a reflection of the inability of humans to correctly predict the response of a complex system to a particular perturbation, not that we ought to twist their words to achieve the end that we think they had in mind. ]
Congress is not an inert body (vegetative, perhaps) — if there is a defect in the statute we ought to presume that they would notice and correct it. They are not held incommunicado.
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October 1, 2009, 11:11 amtroll_dc2 says:
No, the new law, being more recent than the ADA, would be held to limit the reach of the ADA.
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October 1, 2009, 11:15 amMartinned says:
To start with the last one: Have you noticed how hard it is to pass anything other than abstinence-only education in Congress these days? That may well be a good thing, but it does undermine somewhat the presumption that Congress will fix all of its own mistakes.
Otherwise, I’m with Walstad: When Congress bans dogs from their buildings, that would not cover seeing-eye dogs or bomb sniffers, because no reasonable person would read the statute that way, and Congress is entitled to write their statutes bearing in mind the meaning that reasonable persons will assign to the words. Congress doesn’t have to write a specific exception for seeing-eye dogs and bomb sniffers if no reasonable person would consider such dogs to be covered anyway.
BTW, I don’t think that is the same situation as the one discussed in the OP. The Clean Air Act was written with the intention that it should be applied using scientific knowledge unknown at the time of drafting. As long as CO2 fits the definitions of the statute, it is covered, and the EPA has to regulate it.
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October 1, 2009, 11:27 amOren says:
I really didn’t want to get into the doctrine of implied repeal and all that. It suffices to say that a law that says no dogs will be allowed in the Capitol definitely does not exclude bomb-sniffing dogs just because no one in Congress envisioned that result.
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October 1, 2009, 11:29 amMartinned says:
Good to know, although I suspect there may be a lex specialis issue in that ADA/seeing-eye dogs hypothetical, as well as the more obvious lex posterior angle.
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October 1, 2009, 11:42 amOren says:
That is because a majority of legislators do not want to pass full-bore sex-education. There are more socially conservative Dems than there are socially liberal Reps (partly as a function of being the majority party).
Your opinion that it is a mistake is just that — your opinion. It does not replace the judgment of the Congress.
Then you and I differ on reasonable. I think it is quite unreasonable to read the language “No dog shall be allowed in the Capitol building” to allow a dog in the Capitol building. The semantic content of the sentence simply does not allow that conclusion. The only meaning that a reasonable person could assign to those words is that no dog shall be allowed in the Capitol.
[ Aside, why does your blockquote mangle my formatting? ]
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October 1, 2009, 12:23 pmMartinned says:
That’s actually an interesting experiment for a legal theorist with an interest in the practical application of the law, if such a person exists: Take that example, and go ask people in the street. “Congress enacts a law that says ‘No dog shall be allowed in the Capitol building’. Is it allowed for a blind person to bring their seeing-eye dog into the building? Yes/No.” (Tick the box.) I predict an easy win for Yes. (say, 70/30)
The only question is whether 70/30 is enough to give Congress a pass. That’s a discussion that is intimately connected to the recent “Congressmen shall read every letter of every Bill” discussion. If you want your representative to read every letter of everything, you have to let him/her make do with a statute that says ‘No dog shall be allowed in the Capitol building’ combined with the understanding that seeing-eye dogs and bomb sniffers are not covered. The failure to apply common sense to statutes in this way is why American statutes are so illegible.
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October 1, 2009, 12:31 pmOren says:
Common sense is something applied to individual situations, not to general rules. I would urge Congress not to the write the Statute that I suggested, but rather “No dog shall be allowed on in the Capitol except by permission of the Sargent at Arms”. Congress cannot anticipate every possible scenario, they can only delegate it to someone to make the common-sense decision in each instance where the general rule does not suffice.
The problem is that my representative might have that understanding, and your representative might think that bomb-sniffers are OK but not SEDs. This raises a host of practical (not to mention philosophical) problems about what it means for a group of people to approve a bill that includes unwritten assumptions that cannot be known or predicted in advance.
I want my Congressperson to read the bills (actually, I’d rather an experienced legal staffer give him an executive summary) only if what he reads is in isomorphic correspondence to the actual implementation. Otherwise I don’t really see the point.
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October 1, 2009, 1:15 pmPubliusFL says:
Suppose you went and asked people on the street: “A state law says no one may care for unrelated children in their home for more than four weeks each calendar year unless they are licensed day-care providers. Is it allowed for someone to watch their neighbor’s kids for an hour each morning, without compensation, while they wait for the school bus? Yes/no. (Tick the box.)”
I would predict an easy win for Yes in that situation too. But the majority would be wrong. There are plenty of laws on the books (and enforced that way) that don’t match up with the typical “man on the street“‘s idea of common sense.
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October 1, 2009, 1:20 pmSplunge says:
I guess it’s a good thing there’s a lower limit to how much CO2 you can emit per year before the EPA asserts its authority to regulate you, maybe force you to reduce your emissions on threat of massive fines or whatnot.
I mean, each one of us breathes out about half a ton of CO2 every year.
It amazes me that at no point during this whole silly process did one of the responsible folks involved — legislators, judges, lawyers — say Whoa hold up a moment; whatever the merits of this viewed under the microscope of right now and right here, if we go through with seeming to assert the right of government to regulate how much people exhale, we are ultimately going to look like such arrogant and clueless nincompoops that we will do costly damage to what little respect for the law and government is left these days.
Pity, that.
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October 1, 2009, 1:46 pmMartinned says:
Which is yet another interesting question that came up in the otherwise pretty pointless discussion about legislators reading everything: How can laws that no normal person can understand be legitimate?
Like, say, an individual blind person? That said, I agree that your proposal of “No dog shall be allowed on in the Capitol except by permission of the Sargent at Arms” is preferable to either alternative.
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October 1, 2009, 2:07 pmMartinned says:
...which is why the EPA decided to only regulate the really big fish.
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October 1, 2009, 2:09 pmChrisTS says:
Tuck:
But we had left the state of nature before the industrial revolution.
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October 1, 2009, 2:32 pmloki13 says:
Tuck & Chris TS:
It’s all been downhill since we invented agriculture, anyway.
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October 1, 2009, 4:17 pmSean Hecht says:
Interesting post, Jonathan. I’ve posted some more detail and analysis about this at http://legalplanet.wordpress.com/2009/10/02/new-epa-greenhouse-gas-rulemaking-not-quite-what-it-seems/ .
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October 2, 2009, 7:09 pmThe Volokh Conspiracy » Blog Archive » Here Come the Greenhouse Regs says:
[...] greenhouse gas emissions. [UPDATE: The Post story is now fixed.] I should also note (as I did here) that the 25,000 ton threshold embraced by the EPA is an arbitrary threshold entirely of the [...]