Some weeks ago, I discussed and opined on a pending en banc petition in Coalition for Responsible Regulation v. EPA, the sprawling litigation over the EPA’s global warming programs. To recap briefly: in the wake of the Supreme Court’s egregious decision in Massachusetts v. EPA (2007), the EPA first made an “endangerment finding” to the effect that CO2 emissions could be reasonable anticipated to endanger public health and welfare. It then created a row of regulatory dominoes, from the mobile source program at issue in Mass v. EPA to the regulation of stationary sources. That endeavor, the agency helpfully explained, would produce “absurd” consequences, thousands upon thousands of sources, all the way down to hospitals and large apartment buildings, would require permits. To avoid that result, the EPA simply re-wrote the statute and multiplied the numerical permitting threshold by, oh, 400. And, having so “tailored” the program, the agency “timed” it for a gradual phase-in.
A D.C. Circuit panel sustained this travesty in a per curiam opinion. Today, the court denied petitions for rehearing en banc, again on the remarkable theory (which would be hilarious if it weren’t for the economic consequences) that the Clean Air Act’s statutory language is clear: “air pollutant” includes CO2, throughout the entire statute and including its stationary source provisions. Indeed. Even the EPA doesn’t believe that: it “tailored” and “timed” the rules precisely because the “clear” language would produce consequences that Congress cannot conceivably have intended.
On the upside, there are two forceful dissents. Judge Brown makes no secret of her opinion that Mass v. EPA was wrongly decided. Her opinion terminates in a plea for Congress to restore sanity:
At bottom, bad decisions make bad law. In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated. Massachusetts does not compel this outcome for the PSD and Title V provisions. Had this Court interrogated its own assumptions and yielded not to Massachusetts’s telos but sound constitutional principles, it would have found that the matter properly belongs before Congress, not courts or agencies. As Schoolhouse Rock long ago explained:
Ring one, Executive,
Two is Legislative, that’s Congress.
Ring three, Judiciary.
See it’s kind of like my circus, circus.
And what a circus it is.
Judge Kavanaugh, in an opinion that is obviously meant to invite Supreme Court review of the panel decision, argues that there is no compelling reason to read the statutory language at issue in the EPA’s expansive fashion: it is more plausibly read as embracing only a handful of so-called “criteria” pollutants, not CO2. An agency, Judge Kavanaugh insists, cannot re-write a statute to avoid “absurd consequences” that flow the agency’s own strained reading of the statute. (Alas, that strategy seems to be in fashion nowadays. Just last week, the Supreme Court unanimously dinged a very similar maneuver by the Department of Labor.) Much of the dissenting opinion is devoted to careful statutory analysis, but the judge eloquently notes the larger considerations (footnotes omitted):
In cases like this one, the bedrock underpinnings of our system of separation of powers are at stake. To be sure, courts must be wary of undue interference with an agency’s action implementing its statutory responsibilities…. But at the same time, undue deference or abdication to an agency carries its own systemic costs. If a court mistakenly allows an agency’s transgression of statutory limits, then we green-light a significant shift of power from the Legislative Branch to the Executive Branch. …
Importantly, the separation of powers and checks and balances of our system are designed not just to ensure that the Branches operate within the proper spheres of their authority, but also to protect individual liberty. As the Supreme Court has explained many times, “while a government of opposite and rival interests may sometimes inhibit the smooth functioning of administration, the Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. . . . The failures of . . . regulation may be a pressing national problem, but a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse.” Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138, 3157 (2010) (internal quotation marks, alterations, and citations omitted).
Let’s hope the intended audience is listening.