The Clean Air Act, the EPA, and climate change

Where to begin with this? The imagery, perhaps. Photoshopped images of the President—implying that he's some kind of nefarious proto-dictator were vapid and juvenile when George Bush was in that office, and they didn't become any less so on January 20th. The tone is problematic, too, aping the sky-is-falling rhetoric employed by our friends on the other side against the last President: "Today, the EPA handed itself complete control of American industry. If cap and trade fails to pass, Obama can achieve the same thing through the EPA’s new powers as the absolute, unchecked dictator of American life." Well!

So, what's really going on? Apparently unfazed by "climategate," The EPA has today issued a finding that "current and projected concentrations of the six key well-mixed greenhouse gases … in the atmosphere," and thus their emission "from new motor vehicles[,] … contribute[s] to … pollution which threatens public health and welfare." These findings "do not themselves impose any requirements on industry or other entities"—this is the EPA not the FEC, cf. the latter's decision on Comcast and net neutrality—but their finding is a "prerequisite to finalizing the EPA’s proposed greenhouse gas emission standards for light-duty vehicles."

Is this really a jaw-dropping power grab by the President per procurationem the EPA? Is it the EPA "hand[ing] itself"—and thus the Obama administration—"complete control of American industry"?

Walter Peck, don't call your office. As Justice Jackson explained in the Steel Seizure Case, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645 (1952) (Jackson, J., concurring); see Medellín v. Texas, 128 S.Ct. 1346 (2008) (Jackson's framework "provides the accepted framework for evaluating executive action in this area"). And in section 202 of the Clean Air Act, 42 U.S.C. §7521(a), Congress expressly authorized the EPA administrator ("the hand of the President," United States v. Cox, 342 F.2d 167 (5th Cir. 1965), in matters within EPA jurisdiction) to issue emission standards for air pollutants from light-duty vehicles, within the customary limits of agency law on delegation. If something that comes out of a car's tailpipe is an air pollutant, the President and his agencies will act in the brightest midday sun of Justice Jackson's framework should they choose to issue emission standards. And the Supreme Court, in Massachusetts v. EPA, 549 U.S. 497 (2007), concluded that carbon dioxide is an air pollutant for purposes of the section 202.

I have some problems with Massachusetts. It was abundantly clear that the plaintiffs lacked standing, and the Chief Justice's dissent made mincemeat of the court's contrary pretense. Misbegotten or not, however, the decision stands. My own view is that the precedential value of a case is undermined if the court lacked jurisdiction to decide it, but the Supreme Court has never so much as flirted with such an idea. The court generally thinks that stare decisis approaches its zenith in matters of statutory construction. Although never an "inexorable command," Payne v. Tennessee, 501 U.S. 808, 828 (1991) the court applies the doctrine "more rigidly in statutory than in constitutional cases," Leegin v. PSKS, 551 U.S. 877 (2007) (Breyer, J., dissenting). Its "special force" in this context derives in part from the fact that Congress may freely undo, modify, or acquiesce in the court's decision, see John R. Sand & Gravel v. United States, 552 U.S. __, __ (2008). If Congress does not think that section 202 should embrace greenhouse gasses, it is free to change section 202. Congress understands this perfectly well; unhappy with the court's construction of Title VII in a case decided by in the same term as Massachusetts, Ledbetter v. Goodyear, 550 U.S. 618 (2007), it passed the Ledbetter Act, changing Title VII's wording. Likewise, if Congress doesn't want the EPA to regulate greenhouse gasses, it can go to there, but unless or until it does, like it or not, Massachusetts isn't going anywhere.

In practical terms, then, we may say that the Clean Air Act, as amended and construed today, authorizes the EPA to issue emission standards within the customary limits of nondeelgation, an authorization than includes greenhouse gasses within its scope. Accordingly, this is hardly a unilateral takeover of government by the President. It is merely a (potentially) broad and (probably) unfortunate exercise by his EPA of a power Congress has already given them in Clean Air Act. Of course we should criticize and keep a close eye on "this most aspirational of Presidents," but we should not mimic the mistake of the last administration's less well-hinged critics in screaming that the antifederalist Philadelphiensis was merely premature in declaring martial law under a military king ("Who can deny but the president general will be a king to all intents and purposes[?]") a "necessary consequence[] of the adoption of the proposed constitution."