by Ramesh Ponnuru
This isn’t a case where the executive branch has simply gone beyond its authority. It’s a case where officials in all three branches of government have found a way to achieve their policy goals while shielding themselves from accountability.
Congress sends bills to the president and the president signs them: That’s how major policy changes are supposed to work. But Congress has never passed large-scale regulations to combat global warming. It has never even voted to authorize such regulations.
In 2007, though, the Supreme Court pretended that Congress had done so. Lawmakers had voted to fight climate change without realizing it, when they enacted the Clean Air Act. So ruled the four liberal justices on the bench at the time, plus Justice Anthony Kennedy.
The Clean Air Act, initially written in 1970 and last significantly amended in 1990, was intended to deal with traditional air pollution, the kind that clogs your lungs and clouds your view — not with the possibility that chemicals emitted into the air might affect the entire globe through their effect on the upper reaches of the atmosphere. Justice John Paul Stevens, writing for the court, got around that problem by holding that Congress had “carefully” declined to define “air” to exclude those upper reaches.
A vast regulatory apparatus is now being built on Stevens’s inference. One set of regulations is before the Supreme Court, and it shows how hard it is to fight climate change through the Clean Air Act. To treat greenhouse gases as a conventional air pollutant, the Environmental Protection Agency was required to impose stringent rules on anything that emitted more than 100 to 250 tons of it a year. The EPA decided that this wouldn’t be “feasible” and set new thresholds at 100,000 tons a year instead.
In other words, the EPA can’t apply the Clean Air Act to climate change without rewriting it. So the justices will have to decide how much rewriting they’ll let the EPA do.
Even hardened lawyers steeped in the arcana of administrative law must get numbed by such details. So let’s take a step back.
There are good reasons to oppose these regulations. Mandating cuts in carbon emissions to fight global warming is a strategy that seems highly unlikely to pass a cost-benefit test. We would be better off trying to develop technologies to reduce the risks that climate change poses. And even if cutting emissions were the best way forward, getting the global agreement that strategy would require may not be possible. Even supporters of this strategy acknowledge that the developing world may not agree to carbon caps. The case for adopting regulations ourselves is that it will make other countries more willing to reach such an agreement. That seems like a leap of faith.
For these reasons and others, Congress would never have passed these regulations explicitly. In 2010, when Democrats held a filibuster-proof majority in the Senate and a large majority in the House, they failed to get a major climate-change law to the president’s desk. That legislation probably had a better cost-benefit ratio than today’s regulations do. We’re imposing expensive but basically pointless rules even though Congress never really voted for them and never would have.
The president need not take full responsibility for the regulations. He can always say that he’s just following the Supreme Court’s ruling, and that, if anything, he has tried to make the rules less onerous.
Members of Congress can say there’s nothing they can do. Even if they oppose the regulations, as almost all Republicans and many Democrats do, they can’t stop them unless they amass a veto-proof supermajority in both houses.
The justices can say that they’re just interpreting the laws on the books, and have given the executive branch plenty of flexibility to make the rules less burdensome.
If you lose your job because of these regulations, how will you know who to blame, even if you follow politics closely? Which bums will you try to throw out of office? How will you go about trying to change things? We could well end up with a far-reaching, slightly bonkers policy subject to no real democratic review.
Even if the stakes justify these methods of making policy — and I don’t think they do — we should at least acknowledge the cost.
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Ramesh Ponnuru is a columnist at Bloomberg View.