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Another Mass v. EPA Op-Ed:

I wrote another op-ed on the Massachusetts v. EPA case. This one was for a pro/con feature distributed by the McClatchy-Tribune news service. It ran in yesterday's Columbus Dispatch. Here's an excerpt:

A basic principle of our governmental structure is that all legislative powers of the federal government are vested in the legislature. As a consequence, federal agencies, including the EPA, possess only those powers given to them by Congress. Controlling greenhouse gases would be the greatest regulatory undertaking ever contemplated in environmental law. As such, it is simply implausible that Congress would have delegated such authority to the EPA without saying so, yet nowhere does the Clean Air Act explicitly delegate authority to adopt such rules. . . .

The clear intent of the act as amended in 1967 and as subsequently amended in 1970, 1977 and 1990 is to control local and regional air pollution, such as soot and smog. Every time Congress has sought to address a broader environmental concern, such as ozone depletion or acid rain, it has explicitly authorized the EPA to act. Moreover, if carbon dioxide and other greenhouse gases are pollutants for the purposes of Section 202, they are almost certainly air pollutants for the Clean Air Act's "nonattainment" provisions as well, as the language is virtually identical. Yet the regulatory measures that are required by these provisions — the creation and enforcement of national ambient air-quality standards — are fundamentally incompatible with the regulation of greenhouse gases as such.

Arizona State University's Joseph Feller wrote the opposing article. Here's an excerpt from his piece:

t is not up to the EPA, or the courts, to decide whether automobile emission standards are a wise, reasonable or economical way to control air pollution. Congress decided that automobile-emission standards are a good idea, and instructed EPA to issue them for any air pollutant that endangers the public's health or welfare.

If Bush's EPA doesn't agree with the Clean Air Act, it can ask Congress to change it. Until then, to paraphrase Donald H. Rumsfeld, the EPA should implement the law that Congress wrote, not the one that it wishes Congress had written. And if the EPA refuses to follow the law, then the courts should order it to do so. After all, that's their job.

Steve:
This is sort of an original meaning vs. original understanding debate. Of course Congress didn't intend to regulate greenhouse gases. But that doesn't mean it intended to keep the definition of "pollutant" forever frozen in time. If based on what we know today, greenhouse gases meet the statutory definition, I don't see it as relevant that regulation of greenhouse gases would be a "major" undertaking. That sounds like a theory that would put judges in a policymaking role, forced to decide which issues are small enough to be assigned to the EPA and which are so large that they must be kicked back to Congress.
12.27.2006 12:09pm
liberty (mail) (www):
"I don't see it as relevant that regulation of greenhouse gases would be a "major" undertaking. "

But Brown &Williamson did find it relevant.
12.27.2006 12:24pm
Thorley Winston (mail) (www):
Sounds like a clear case of Chevron deference to me. The statute is ambiguous and the agency's interpretation seems pretty reasonable (as it would be if they had decided the other way). Considering also the highly technical nature of the subject matter, the specialized knowledge involved, and the courts will probably kick it back to the EPA to make the call.
12.27.2006 12:38pm
Fran (mail) (www):
Here's another except from Feller's piece:

The act defines air pollutant to include "any substance or matter which is emitted into or otherwise enters the ambient air." Since greenhouse gases are substances, and they enter the air, they are air pollutants.

Wouldn't this be similar to the all inclusive view of laws as interperted by the Bush admin? I'm thinking of the GWOT being read very broadly.
12.27.2006 12:53pm
Fran (mail) (www):
I posted too quick.

I realize that this was quoted in both Op-Eds.

I think Steve has the basis for the argument. Intent or Original Meaning.

My point from above is that Bush has clearly decided on Original Meaning, and it is obvious that "any substance or matter which is emitted into or otherwise enters the ambient air.", would include carbon dioxide.

It seems silly to continue to write laws if we haven't agreed on how we interpert them.

I wonder if 'we the people' get a signing statement regarding how the law will apply to each of us, individually.
12.27.2006 1:04pm
Justin (mail):
It's dangerous to rely on Brown and Williamson or Bob Jones as fundamental theories of stautory interpretation. They almost always prove far too much, and are sloppily written (the result, I am afraid, of results-oriented judging on high profile political cases).

While this is exactly the type of "high-profile" political case where BW may be applied, I think we should be careful using those cases as predictors of some "objectively right outcome." The obvious counter-analogy is the 8th Amendment, as Steve mentions - what do you do when the legislator clearly defines a word in light of future understanding?

I think ultimately Adler's position is correct, though I think its very close (I think Adler's position will win, as well, and that will be less close - 6-3 is my prediction, though 5-4 and 7-2 are each possible). However, I think the argument he puts forth in his op-ed is the stronger argument than the generic BW one, which I think is fundamentally pretty weak, and will be used as a last resort by the anti-administrative-state sector of the Court.
12.27.2006 1:52pm
NickM (mail) (www):
If carbon dioxide is a pollutant, then people are polluters every time they exhale. Having a child would be creating a new polluting source.

Explain why, if the EPA is mandated to consider regulation of carbon dioxide emissions from cars, industrial activity, etc., it would not also have authority to regulate individual human production of carbon dioxide.

Nick
12.27.2006 2:18pm
Justin (mail):
Nick,

The Commerce Clause holds the answer that you seek.
12.27.2006 2:21pm
Andy Freeman (mail):
Since people regularly travel in interstate commerce, they're at least as subject to federal jurisdiction as lawnmowers.
12.27.2006 2:44pm
Some Guy (mail):
Gratuitous ad hominem attack on Prof. Feller deleted by moderator.
12.27.2006 2:48pm
Paul Allen:

any substance or matter which is emitted into or otherwise enters the ambient air.


Is there any traction to that idea that CO2 is not a "substance or matter" that "enters the ambient air" but is in fact "ambient air" itself.

What is air? I'm pretty certain that it isn't vacuum. No, its the natural atmosphere of the planet. The primary constituents of which are Nitrogen, Oxygen, and Carbon Dioxide. These are the air. Conversely those things we count as pollutants entering the ambient air tend to be substances with ppm concentration--whose appearance in the air is not natural, not part of the ambient conditions.
12.27.2006 3:16pm
Craig Oren (mail):
The Clean Air Act is pretty plain. It defines an "air pollutant" in sweeping terms as *anything* that enters the ambient air. The administrator can regulate an air pollutant if he/she finds that it is reasonably anticipated to endanger public health or welfare. This language shows that while Congress may not have had a specific intent to regulate greenhouse gases, it did have an intent to regulate substances that have been found to endanger public health or welfare.

The rejection by Congress of legislation to regulate global warming is not convincing. That rejection shows only that Congress decided not to give firm direction to EPA on how or whether to regulate. The rejection indicates, if anything, that Congress wanted to leave it to EPA to decide how to regulate.

The interesting question to me is not whether EPA has the authority to regulate greenhouse gases. The issue whether is determining what criteria EPA can use in judging whether greenhouse gases may reasonably be anticipated to endanger public health or welfare. EPA used a very broad set of factors, including the desirability of regulation. This was approved by one judge below, but not by dissenting Judge Tatel, who expressed the view that EPA is confined to considering factors that are relevant to health and welfare. The determination of this issue will do a lot to decide whether EPA will have to regulate.

BTW, I urge the moderators to remove the ad hominem attack above on Professor Feller.
12.27.2006 3:25pm
Justin (mail):
I think we can all safely assume that just because people are mobile, the Commerce Clause does not confer general police and tax power upon Congress.
12.27.2006 3:53pm
David M. Nieporent (www):
I think we can all safely assume that just because people are mobile, the Commerce Clause does not confer general police and tax power upon Congress.
We could safely assume that if we were originalists. But since the New Deal, one can't safely assume that at all. Congress does have general police power. If rape, or carrying a gun near a school, can trigger the commerce clause -- and note that even the majority in Lopez didn't categorically reject that -- then anything can.


The interesting question to me is not whether EPA has the authority to regulate greenhouse gases. The issue whether is determining what criteria EPA can use in judging whether greenhouse gases may reasonably be anticipated to endanger public health or welfare. EPA used a very broad set of factors, including the desirability of regulation. This was approved by one judge below, but not by dissenting Judge Tatel, who expressed the view that EPA is confined to considering factors that are relevant to health and welfare. The determination of this issue will do a lot to decide whether EPA will have to regulate.
If the EPA were limited to considering health, then one would have to reject that argument. Health is health. But if the EPA is considering welfare, then it doesn't make sense to say that they must ignore benefits of allowing the emissions in evaluating the effect on welfare.
12.27.2006 4:10pm
Craig Oren (mail):
EPA has long maintained that costs are *not* relevant to whether something threatens welfare. It will be interesting to see what the Supreme Court thinks of this.
12.27.2006 4:30pm
Craig Oren (mail):
p.s I misquoted the statute. It talks about "reasonably anticipated to endanger "public health *or* welfare." 42 USC s 7521.
12.27.2006 4:33pm
Justin (mail):
David,

This is silly. The difference between "carrying a gun near a school" (difficlut case) or "rape" (easy case) on the one hand, and BREATHING on the other hand, is obvious. Though you do not read about them in law school books, as applied challenges under the commerce clause are not as rare as you make them out to be - for instance, there are a variety of cases involving arson of religious institutions (though I should point out those cases, much like this one, have intertwined statutory issues).

"Breathing," on the other hand, is an easy case. Nowhere does Morrison or Lopez, even in dissent, assert plenary police power. Reducto ad absurdem is not a very strong rhetorical device in the first instance, but ignoring the very strong "stop" signs on the way makes it useless in this instance.

And even if we're playin this game, if the EPA does have the authority to regulate human breathing, so? How do you expect them to enforce it? Tell people to stop breathing?

I answered Nick's question pretty summarily because it wasn't a very useful question. It still isn't a very useful question, and once you get your cheap shot in against the Supreme Court for not striking down the administrative state itself, it does not leave you with much. Needless to say, if Hillary Clinton decides to tax everyone who doesn't agree to wear a gas mask, and somehow got Congress to destroy the (easy) statutory question by expressly permitting this tax, Courts would easily and summarily overturn the legislation by finding it not supported by Congress's taxing or regulating powers.
12.27.2006 4:45pm
Cornellian (mail):
This situation seems pretty much par for the course as far as regulatory regimes go. Congress delegates incredibly broad regulatory authority to some agency, then counts on administrative discretion supplemented by occasional hectoring from Congressmen and Senators to keep the agency from over-reaching. So the template here, as in other cases, is:

1) Congress passes statute stating Agency may regulate anything at all, directly or indirectly, to do with X

2) Agency regulates stuff directly and immediately bearing on X, even though the wording of the statute could easily support a much broader scope of regulation

3) Agency gradually starts regulating stuff further and further away from a direct and immediate bearing on X, partly due to public pressure, partly due to changing circumstances and partly due to the usual bureaucratic mission creep

4) Agency eventually irritates enough people (including people who can hire lobbyists) that Congress starts complaining, usually in the form of self-serving, blame dodging statements like "when we said Agency could regulate anything at all having something to do with X, we didn't really mean Agency could regulate Y", even though Y has something to do with X.

5) Agency backs away from this particular initiative under Congressional pressure

6) Return to step 3, repeat cycle every few years

This is pretty much how the administrative state works these days folks, and that isn't going to change. Congress doesn't have the capacity to enact statutes at the speed and specificity required for a regulatory state to function and Congressmen love the ability to hold hearings, call administration officials to testify, and pretend its all the fault of the Agency, and nothing at all to do with an overbroad delegation from the outset.
12.27.2006 6:52pm
David M. Nieporent (www):
"Breathing," on the other hand, is an easy case. Nowhere does Morrison or Lopez, even in dissent, assert plenary police power.
They certainly do. Everything affects interstate commerce in the aggregate, and that's the only standard the dissenters in those cases propose. Punishing rape is a quintessential exercise of the police power; it has no commercial aspect to it at all. You're being disingenuous because you basically support unlimited federal power, and want to deny the reducto to avoid looking absurdem.

Breyer explicitly endorses plenary police power in his Morrison dissent:
The majority, aware of these difficulties, is nonetheless concerned with what it sees as an important contrary consideration. To determine the lawfulness of statutes simply by asking whether Congress could reasonably have found that aggregated local instances significantly affect interstate commerce will allow Congress to regulate almost anything. Virtually all local activity, when instances are aggregated, can have "substantial effects on employment, production, transit, or consumption." Hence Congress could "regulate any crime," and perhaps "marriage, divorce, and childrearing" as well, obliterating the "Constitution's distinction between national and local authority." Ante, at 15; Lopez, 514 U.S., at 558; cf. A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935) (need for distinction between "direct" and "indirect" effects lest there "be virtually no limit to the federal power"); Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (similar observation).

This consideration, however, while serious, does not reflect a jurisprudential defect, so much as it reflects a practical reality. We live in a Nation knit together by two centuries of scientific, technological, commercial, and environmental change. Those changes, taken together, mean that virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State--at least when considered in the aggregate. Heart of Atlanta Motel, 379 U.S., at 251. And that fact makes it close to impossible for courts to develop meaningful subject-matter categories that would exclude some kinds of local activities from ordinary Commerce Clause "aggregation" rules without, at the same time, depriving Congress of the power to regulate activities that have a genuine and important effect upon interstate commerce.

Since judges cannot change the world, the "defect" means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance.
In short, the only limits on Congressional power under the Commerce Clause are those Congress decides to impose on itself. Which is no limit at all.
12.27.2006 6:53pm
David M. Nieporent (www):
Cornellian, you missed Step 5.5:

5.5 Activists who believe in unlimited federal power and kritarchy sue to force Agency to regulate Y.
12.27.2006 6:57pm
Steve:
Punishing rape is a quintessential exercise of the police power; it has no commercial aspect to it at all.

Seriously? Long before Wickard v. Filburn, we had the White-Slave Traffic Act of 1910. The journey from the Mann Act to rape with an interstate nexus is not nearly as long as the journey from the Mann Act to breathing, I'm quite confident of that.
12.27.2006 6:59pm
David M. Nieporent (www):
While one can certainly argue (and I certainly would) that the Mann Act represented an overreaching of Congressional power, it did not purport to regulate any individual behavior, but only interstate travel for the purpose of engaging in said behavior. It would be analogous to Congressional banning of travel across state lines for the purpose of raping someone.

But that's not what Morrison was. The VAWA banned purely intrastate rape on the theory that this somehow might affect the economy somewhere down the road. In contrast, note that nobody even tried to make the narrower claim that hiring a prostitute from across town affected the market for prostitutes from across state lines, and that Congress could therefore ban all prostitution.

You say "rape with an interstate nexus," but that's not what VAWA banned. It banned all rape, essentially on the theory that everything we do has an interstate nexus.
12.27.2006 7:36pm
Cornellian (mail):
Cornellian, you missed Step 5.5:
5.5 Activists who believe in unlimited federal power and kritarchy sue to force Agency to regulate Y.


I believe this step is implicitly included in my step 3 in which Agency regulation expands "partly due to public pressure, partly due to changing circumstances and partly due to the usual bureaucratic mission creep." I actually don't blame the "activists" all that much for going to court in this type of situation. When the statute says the Agency can regulate anything having anything to do with X you're pretty much inviting lawsuits whenever the Agency fails to regulate anything, since nearly anything has something to do with X, certainly at least as much as growing a plant in your own backyard for your own personal use has to do with interstate commerce. The problem is the overbroad delegation in the first place, not the going to court over the meaning of it.
12.27.2006 7:40pm
Justin (mail):
"You say "rape with an interstate nexus," but that's not what VAWA banned. It banned all rape, essentially on the theory that everything we do has an interstate nexus."

Thank God for the Supreme Court. Now rape is legal!
12.27.2006 9:51pm
David M. Nieporent (www):
Thank God for the Supreme Court. Now rape is legal!
Now you're talking about the Kelo decision.
12.27.2006 9:55pm
Eli Rabett (www):
While the major components of the earth's natural atmosphere air are nitrogen and oxygen, and at a lower level water vapor, argon and carbon dioxide, you also find ozone, nitrogen oxides, sulfur oxides, methyl chloride, methyl bromide and a ton of other things. Paul Allen's argument fails. One is back to arguing source and amount, which is, I believe where this argument is.
12.27.2006 9:56pm
Andy Freeman (mail):
> I think we can all safely assume that just because people are mobile, the Commerce Clause does not confer general police and tax power upon Congress.

Lawnmowers are less mobile than people, yet the Commerce Clause reaches them.

Heck - rooted-in-earth plants aren't mobile and the Commerce Clause reaches them.

And, the power to regulate breathing, or at least the production of little beings that will breath, is different than police power.
12.28.2006 11:51am
Yankev (mail):

Now you're talking about the Kelo decision.


David, I think you're confusing rape with plunder.
12.29.2006 2:39pm