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.