The EPA’s Encroachment of Power

From Michael P. Tremoglie's article in Legal Newsline:

The past few months have seen the EPA criticized by the very same court which gave it the authority in 2007 — and other courts as well. It has also been criticized by many lawmakers, some of whom were allies of the EPA. Numbered among EPA's critics are some free-market, public policy organizations such as the Competitive Enterprise Institute.

Marlo Lewis is a Senior Fellow at the CEI where he writes on global warming issues. He served as staff director of the House Government Reform Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs when it held the first hearing on EPA's authority to regulate greenhouse gases in October 1999.

Like many others, Lewis believes the EPA is exceeding its authority — and the root cause stems from Mass. v. EPA.

"The main part was how the majority read the definition of air pollutant," he said. "What the court did was decouple the definition of air pollutant from its plain English meaning. Basically the court disregarded a key term in the first sentence and the entire of Section 302 G of the Clean Air Act.

"Mass. v EPA is a classic case of results-oriented jurisprudence. Certain Justices wanted to reach a certain conclusion and tortured the definition of air pollution to do it."

Lewis took note of the fact that although the Court argued in Mass. v. EPA that the EPA has the authority to regulate greenhouse gases Congress has continually declined to give it the explicit authority to do so.

He observed that he found Justice Antonin Scalia's comments in his dissent in Massachusetts v. EPA persuasive. He mentioned that Scalia said:

* "Unlike other statutes, the Clean Air Act does not say that EPA must render a judgment when a rulemaking petition is filed."

* "The statute is silent as to the reasons for which EPA may defer making a judgment."

* "The majority says EPA may defer making a judgment if the scientific uncertainty is too profound – that is precisely what EPA said, based on uncertainties discussed in the NRC report."


Scalia is not commenting on the correctness of the science," said Lewis. "Scalia neither affirmed nor denied the correctness of the NRC statements. … He was simply saying, look, you guys (the majority) assert EPA may decline to make an endangerment determination only if EPA concludes the scientific uncertainties are too profound; that's what EPA did …

"Unless EPA's use of the NRC report was arbitrary and capricious (not argued by petitioners and not asserted by the majority), EPA … is entitled to draw that conclusion from the NRC report …"

Finally Lewis said Scalia's summarized the problem well writing, "The Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. … No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency."