Strengthening Constitutional Self-Government

No Left Turns

Massachusetts vs. EPA

NRO’s Jonathan Adler explains this decision, in which the majority reads the language of the Clean Air Act much more expansively than Congress has:

If Justice Stevens’s arguments are correct, many of the provisions added to the Clean Air Act in 1990 were surplusage, as the EPA already had ample authority to address emerging concerns such as stratospheric ozone depletion and acid rain. Clearly Congress felt differently. Every time in the past that Congress sought to regulate such regional or global pollutants, it recognized the need to enact new provisions, and that is precisely what it did. Moreover, Congress has repeatedly rejected the authorization of regulatory controls on greenhouse gases, explicitly denying the EPA authority to expend taxpayer funds on preparing to regulate greenhouse gas emissions when some feared the Clinton Administration would try and do just that. As recently as 2005 the Senate adopted a resolution calling upon Congress to adopt measures to limit emissions of greenhouse gases. If Congress had already delegated authority to regulate greenhouse gases to the EPA, such resolutions would be wholly unnecessary.

Somehow, I don’t think that the defenders of Congressional authority now in control of the House and Senate will do anything other than genuflect before their masters on the bench.

Discussions - 9 Comments

genuflect before their masters on the bench.

Joseph: Your analysis doesn’t work so well. First, there is a good plain meaning argument that EPA has the authority to regulate CO2 under the statute that Congress itself passed, and that the Court is thus just giving effect to the words of the statute in the face of a recalcitrant agency.

Second, nothing in the Court’s opinion imposes judicial will on Congress; if Congress wants to act, it can act. The Court forecloses no congressional action at all.

This was a dispute between an EPA that didn’t want to act and interests (including, theoretically, the Congress that passed the Clean Air Act itself) that wanted it to act.

According to Adler, Congress has consistently refused to take the legislative action that the Court is now reading into the law. Is he wrong?

How do you guys find the time to read cases/opinions so quickly?

My secret is that I’m careful not to claim to have read the opinion (yet).

Joe - Yes, I was teasing, and I understand that Mr. Adler is certainly familiar with the case. A quick read of the opinion and dissents suggests to me that Scalia is right as a matter of administrative law. The ball belongs in Congress’ court. For Scalia, the pivot is the language of sec. 202 of the Clean Air Act. Congress can (and in my opinion ought to) begin to resolve the uncertainties surrounding global warming in favor of regulating CO2 emissions.

Joseph: Adler is being a little tricky, and I mean that in the most civil way possible. The majority opinion has the better argument here, for a few reasons: (1) post-enactment congressional actions on related but not identical issues shouldn’t trump the text of the statute, (2) the actions themselves that Adler describes are not mutually incompatible with the requested EPA regulation - you can easily think that EPA has the authority and that Congress should act, (3) if Congress doesn’t think that CO2 is a pollutant under the meaning of the act, it can change the act and make its intentions clear, immediately.

If you’re at all attracted to Scalia’s theory that you shouldn’t look to legislative history to illuminate the meaning of a statute, why should you look to post-enactment legislative history, as Adler suggests? There’s a fun tension there.

Good points, all.

If the Court’s reading is a plausible, but hardly the only, reading of the act’s language, then why should its interpretation bind either political branch?

I agree with Steve at least to this extent: what is to be done is a political question that could "relatively easily" be resolved by Congressional action. Of course, when the Court does your work for you, and you don’t have to take any heat (so to speak), so much the better...for the interests of the politicians, if not for responsible self-government.

And, for what it’s worth (not much, of course), I’m not simply a Scalitist when it comes to statutory (or constitutional) interpretation.

Joseph: I think that I agree with your general departmentalist stance, at least in theory. But look at the relevant sections of the Clean Air Act yourself and think about whether that act gives the EPA authority to regulate CO2. EPA has changed its mind over the years on this issue, and any given Congress may have as well, in its heart of hearts. But Congress has a means to make its intentions public, namely, through lawmaking. There was no authoritative voice for Congress in the litigation other than the Clean Air Act itself, and that’s usually the case in such litigation.

It seems to me to be a little too cute to say that because Congress asked the EPA to initiate an interagency process to approach CO2 emissions - or got into a spat with Clinton over Kyoto - that therefore the statute as passed in the 1970s does not give the EPA administrator authority to regulate CO2. Your - and Adler’s - dispute is at bottom a dispute with the Clean Air Act. Fair enough. Get it repealed!

You’re right: the court’s interpretation of the statute does not bind Congress. Whether it should bind agencies is a trickier issue, but everyone agrees, I think, that when a statute is clear, a court’s pronouncement on the meaning of a statute binds agencies, notwithstanding a differing view. The important question is whether the statute is clear. Seems clear to me, but perhaps you will have a different view.

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