The Regulatory State on Autopilot (II)

There is, I think, quite a bit to learn from the D.C. Circuit’s greenhouse gas cases, reviewed in yesterday’s post. Let’s start with a dorky but telling AdLaw point and move on to more cosmic themes:

  • GHG regulation in strict compliance with the CAA would mean shutting down the country. To finagle that problem, EPA now routinely invokes two canons—“one-step-at-a-time,” and “absurdity”—that are mutually exclusive. If the statutory shut-down is absurd, why take even the first step? If it isn’t, why not follow the statutory commands (instead of re-writing the statute)? No prob, says EPA: it makes perfect sense to move step by step toward an insane result. In my view, a fine description of the entire regulatory state; on EPA’s account, the logic of Mass v. EPA and Coalition. To borrow a movie line, EPA has a point. A stupid point, but a point.
  • There’s been a lot of huffing—in connection with judicial nominations and appointments—about the D.C. Circuit as the last line of defense against the Obama Administration’s imperial tendencies (or a roadblock to its urgent initiatives, depending on who’s talking). The GHG cases don’t quite fit that account, do they? It’s pedal to the metal.
  • Conservatives cherish the image of a headless, unaccountable fourth branch of government. But that’s not what’s happening here. For starters, EPA’s climate initiatives are engineered and supervised by the White House, at the President’s feet (see here). That’s presidential administration pure and the “unitary executive” in action. If memory serves we used to be for that. Are we still—or would we rather have Cass Sunstein’s AdLaw of “reasoned deliberation”?
  • · Somewhat at variance with the preceding point, one could argue that the Prez is simply jumping at the head of a climate parade that would march ahead without him because that’s the way the courts have construed the CAA. Under Mass and Coalition, once you feed some chemical into one of its “endangerment” provisions, the act is a machine that will go by itself: EPA must regulate. If EPA delays or “tailors” to avoid “absurd results,” it gets sued. Adherence to the law, and all that. Under the D.C. Circuit’s brilliant standing jurisprudence, regulated firms can’t sue: their injury comes from the “automatic operation” of the CAA, not from anything EPA did. In contrast, pro-regulatory enviros can sue over delays and exemptions. They can choose to go ahead or hold off (for example, if they fear a blow-back from Congress, or if EPA asks politely enough). What we have here is government rulemaking on demand.

Only two institutions are capable of arresting the momentum: Congress, and the Supreme Court. Will they?

To quote Judge Kavanaugh: the GHG CAA “is a far cry from what Congress intended or enacted.” The response is, who gives a rip? Congress won’t fix immigration laws that don’t provide for the administration’s manufactured DREAM Act, or an Affordable Care Act shot through with improvised exemptions and extensions. Charles Krauthammer, Nick Rosenkranz, and others have rightly criticized the administration’s lawlessness at multiple fronts. But the thing is, Congress is supposed to bite back. It won’t do so even when the administration’s conduct is flagrantly illegal. Why should it, how could it, do so when, as here, EPA simply follows the judiciary’s commands?

The fecklessness of Congress may be the central pathology of the contemporary administrative state. Before you jump to the “remedy” of getting Congress back into the game, though, be careful what you wish for—a Planet Protection and Affordable Climate Act?

As for the Court, the pending cert petitions in Coalition for Responsible Regulation provide an opportunity to stop the run-away GHG train wreck in its tracks. But the Court would have to realize that this is the last chance. If the D.C. Circuit’s decision stands, the regulatory dominoes will keep tumbling. Also, there won’t be another industry coalition for responsible regulation or for anything else: it’ll be every firm and industry for itself.

The Court would also have to renounce, or at any rate depart from, its modern day tendency to play Jesus Christ in reverse—to claim a near-monopoly on purity and good intentions; to heap all the sins onto the institutions that must put those abstractions into practice; and to wash its hands of the whole affair when it gets messy. School busing, racial quotas, crime, etc: it’s always someone else’s fault. In extremis, the Court can always say and has often said, “we never meant that.” Sleazy and dishonest? Yup: “sorry” would be better. But they never say that. So here’s to hoping that come October, the justices will grant cert in Coalitions—and say that Mass v. EPA didn’t mean what it seems to say.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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Comments

  1. Ron Johnson says

    “Democratic agency risks” are defined as “the danger that the people’s representatives (agents) may defect from a competitive constitutional structure that is supposed to keep them in check.” So says the brilliant author of a recently published masterpiece of constitutional analysis, but he should have added that in its most extreme case those representatives represent only their own self-interest and the group think of their class. Does anyone believe that we are not there already?

  2. gabe says

    And the Court will not say “Oops, sorry” because they are bound (in their own minds) by that precious sacrament called “precedent.

  3. says

    The fecklessness of Congress may be the central pathology of the contemporary administrative state.

    I agree with this. I do not however think that the “remedy” involves Congress taking a more active role in rule-making. One remedy would be rather simple and general: amend the Administrative Procedures Act to provide that any delegation of authority, and any burdens imposed by agency action that were not explicitly contained in enabling legislation, will sunset and must be re-authorized by Congress every two or three years. Thus, for example, the greenhouse gas regulations can be upheld by the Supreme Court, but Congress would be required to regulate the regulators, and decide whether to affirm the decision or tweak the delegation of authority to the executive branch. A partisan president could not simply veto tweaks he did not agree with, since the agency authority would sunset in the absence of Congressional reauthorization.

    This is consistent with the approach taken in Article I, Section 8 of the Constitution, which restricts appropriations to the armies to a term of no more than two years. The founders were wary of the powers of standing armies; two hundred and twenty-some years of political experience suggests we should be just as wary of the administrative state.

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