To ascend or dethrone a tsar according to the rules? – Is it good?

Are from MasterSource

Via Richard W. Fulmer

“The usual Supreme Court decision states that federal regulators cannot bypass Congress and unilaterally impose unprecedented economic and political mandates. Nor can they forgo their own legislatively approved mandates, stretching them further than they were intended. In the end, they cannot extend their scope of activities beyond their expertise.”

Write in New Republic, Simon LazarusRetired Senior Advisor to Constitutional Accountability Centercharge that The Supreme Court has appointed himself as the governing tsar of the United Statesdeclare:

The High Court cast aside the elected representatives of the people to enact the climate denial agenda of the major donors who sponsored their nominations.

Lazarus settled his case based on statements that the Court:

  1. There is no right to handle the case
  2. Ignore the explicit text of the law – specifically Section 111(d) of the Clean Air Act
  3. Ignoring the stated interests and desires of US utility companies

In making his argument, Lazarus adopted the now-familiar argumentative tactic of accusing the opposition of doing exactly what he and his faction were doing, namely creating loopholes. legislation and in the process bypassing the elected representatives of the country.


In June 2014, the Environmental Protection Agency (EPA) offer The Clean Power Plan aims to address carbon dioxide emissions from existing fossil fuel power plants. The plan gave the EPA the power to order coal-fired power plants to reduce CO . emissions2 emissions by converting to natural gas and ordering natural gas plants to convert to renewable sources such as wind turbines or solar panels. “Conversion” would require razing the old factory and building a new facility to replace it. In the past, the EPA has limited itself to requiring specific emissions control measures to existing plants, rather than ordering them to be replaced altogether.

In addition, the new EPA rule would require a cap and commercial plan under which existing plants can meet emissions requirements by purchasing emission credits. This, despite Congress having rejected capped and commercial plans in the past.

In 2016, the Court issued stay on implementation of the plan says it cannot continue until all pending legal challenges have been resolved. In 2019, under the new administration, the EPA determined that the plan exceeded its authority under Section 111(d) of the Clean Air Act (CAA). According to the Court WV v EPA decision:

The agency determined that the interpretive question raised by the Clean Power Plan falls under the core question doctrine. Under that doctrine, it determined that a clear statement was needed for the court to conclude that Congress intended to delegate “this broad authority to regulate a fundamental sector of the economy.”

Accordingly, the EPA proposes to replace the Clean Power Plan rule with the The rule of affordable clean energy that would be limited to forcing existing facilities to reduce emissions through equipment upgrades and operational improvements. The change was opposed by several states and private parties, and an appeals court moved both plans back to the EPA for further review.

In short, like Cato Institute Researchers William Yeatman write:

Obama ordered the EPA to issue the rule; Trump orders the EPA to replace Obama’s rule; and then Biden ordered the EPA to replace Trump’s rule.

What Yeatman calls “making law enforcement” leads to a multitude of uncertain mode when power in Washington changed hands and each successive president used “pen and phone“To bypass Congress.

Should the Court hear the Case?

Lazarus argues that SCOTUS killed a dead plan. But, if all the Court has done is push stakes into the heart of a dead rule, what’s all the trouble going on? The answer is that the Biden administration wants to bring the dead back to life, according to the Court, exactly what gave them the right to hear the case:

The Government’s argument in this case stems from the statement that the EPA had no intention of implementing the Clean Power Plan prior to the issuance of the new Section 111(d) rule. But “a voluntary discontinuance does not advance a case” unless “it is absolutely clear that the alleged misconduct cannot reasonably be repeated.”

Lazarus and his allies want the EPA to repeat the “wrongdoing” by reinstating the Clean Power Plan, arguing that grid-wide mandates constitute the “best emissions reduction system” (BSER). now available.

Is the court circumventing the law?

The relevant paragraphs of Section 111(d) of the Clean Air Act state:

(d) Performance standards for existing sources; remaining useful life of the source

(1) The Administration shall provide regulations which shall establish a procedure similar to that set forth in section 7410 of this title, whereby each State shall submit to the Administration a (A) establish performance standards for any existing source for any air pollutant. (i) the air quality criterion has not been issued or is not listed under section 7408(a) of this title or is emitted from the type of source specified under section 7412 of this title but ( ii) to which performance standards in this section will apply if the existing source is new, and (B) provide for the implementation and enforcement of those performance standards….

When promulgating a performance standard under a plan specified in this paragraph, an Administrator shall consider, among other factors, the remaining useful life of the resources in the source category to which the standard applies. there.

At the heart of the debate is whether the word “existing source” applies to individual power plants or to the nation’s entire grid. The final paragraph, referring to the “remaining useful life of the sources,” suggests that the law covers individual facilities, not the entire grid. As the majority opinion holds that:

The issue here is whether the restructuring of the country’s overall electricity generation structure, to move from 38% to 27% coal by 2030, can be BSER in the sense of Section 111.

Ancestors teach that there are “extraordinary circumstances” in which “history and breadth of authority [the agency] asserted, “and the “economic and political implications” of that assertion, providing a “reason to hesitate before concluding that Congress” was meant to give such authority….

Indeed, the Agency gave a nod to the novelty of its approach, explaining that it was pursuing a “broader, forward-thinking approach to design” in Section 111 regulations that would “improve the overall power system” rather than the emissions efficiency of individual sources, by forcing a grid-wide switch from one type of energy source to another….

In view of the EPA’s Section 111(d), Congress tacitly assigned that task, and that alone, by balancing many important national policy considerations related to the basic regulation of how people should be treated. America takes their energy. There is little reason to think that Congress did. EPA has acknowledged that electricity transmission, distribution and storage issues are not in its traditional area of ​​expertise.

While critics of the Court of WV v EPA announced the decision that it had taken power from “experts”, even the EPA admitting that they did not have the expertise to carry out its plan, risking serious disruption to supplies national energy and economy.

Did the court ignore a special interest?

Lazarus alleged that the Court’s decision was a corrupt bargain:

[T]The ultra-conservative judges’ modus operandi has been “from the start” to “obstruct” the EPA and to align national policy with the agenda of Republican patrons and donors. their own, and major donors fund those that we forget financed the campaigns that secured these judges’ nominations and endorsements.

But then he came back and complained that the decision wasn’t as particularly beneficial to the company as they wanted it to be:

Defending the EPA’s approach to greenhouse gas regulation as parties is a consortium of major power companies, including Con Edison, Exelon, National Grid USA and Pacific Gas & Electric…

[Environmental advocate Sean] Donahue commented that “Electricities have supported the EPA because they want regulatory stability, not constant litigation, and they prefer flexible approaches that include things like emissions averaging and business”.

[T]Hese anti-regulatory justice advocates failed to address the opposing views of the affected industries, let alone explain why – in this case of extremely dire consequences – the court The most pro-business in history has bypassed a hugely affected industry to adjust national environmental policy. consistent with the interests of the Republican Attorney General of West Virginia and his allies.

While Lazarus states that:

These approaches [emissions averaging and trading]are, of course, the kinds of cost-effective, flexible, least disruptive techniques for fossil fuel replacement that Roberts and his colleagues have ruled out beyond the limit.

The court has done nothing of this sort. Instead, it takes the matter to Congress, which has a constitutional mandate to address (or choose not to) such national problems.


The Supreme Court’s usual decision states that federal regulators cannot bypass Congress and unilaterally impose unprecedented economic and political mandates. Nor can they forgo their own legislatively approved mandates, stretching them further than they were intended. In the end, they cannot extend beyond their expertise.

Contrary to Lazarus’ claims, the Court did not consider itself a statutory tsar. Instead, it prevented the EPA from ascending the throne. Nor did the court “set aside the elected representatives of the people.” Instead, it takes matters out of the hands of unelected, unaccountable officials and leaves it in the hands of the elected representatives of the nations.

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