The Volokh Conspiracy - Another <i>Mass v. EPA</i> 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.

	[Jonathan Adler, December 27, 2006 at 10:41am] Trackbacks 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. Related Posts (on one page): Another Mass v. EPA Op-Ed: More Reax to Mass v. EPA Argument: Early Reax to Mass v. EPA Argument: Quick Take on Mass v. EPA: The NYT on Mass v. EPA: Mass v. EPA Previews: Massachusetts v. EPA at AEI: Massachusetts v. EPA Event: