In a 2-1
ruling, a panel of the Circuit Court of Appeals for the
District of Columbia has struck down the EPA’s “Transport Rule,”
also known as the Cross-State Air Pollution Rule, based on the
EPA’s exceeding the authority permitted it by statute. The two
judges in the majority were appointed by George W. Bush; the
dissenter by Bill Clinton.
For those interested in the specifics of the two areas in which
the court found the EPA to have done so, here is the relevant text
from the opinion:
Here, EPA’s Transport Rule exceeds the agency’s statutory
authority in two independent respects. First, the
statutory text grants EPA authority to require upwind States to
reduce only their own significant contributions to a downwind
State’s nonattainment. But under the Transport Rule, upwind States
may be required to reduce emissions by more than their own
significant contributions to a downwind State’s nonattainment. EPA
has used the good neighbor provision to impose massive emissions
reduction requirements on upwind States without regard to the
limits imposed by the statutory text. Whatever its merits as a
policy matter, EPA’s Transport Rule violates the statute.
Second, the Clean Air Act affords States the initial
opportunity to implement reductions required by EPA under the good
neighbor provision. But here, when EPA quantified States’ good
neighbor obligations, it did not allow the States the initial
opportunity to implement the required reductions with respect to
sources within their borders. Instead, EPA quantified States’ good
neighbor obligations and simultaneously set forth
EPA-designed Federal Implementation Plans, or FIPs, to implement
those obligations at the State level. By doing so, EPA departed
from its consistent prior approach to implementing the good
neighbor provision and violated the Act.
The opinion went on the emphasize that the court is offering no
opinion on the wisdom of any particular environmental policy, and
— almost seeming to apologize for this ruling — named four cases
in which “this Court has affirmed numerous EPA clean air decisions
in recent years…”
The Transport Rule was a dagger aimed at the heart of the
coal-powered electricity industry, the first step in President
Obama’s stated goal of causing electricity prices to
“necessarily skyrocket.”
Today’s ruling should scare the EPA and other radical
environmentalists deeply, particularly as it offers precedent to
every court in the nation other than the Supreme Court to consider
whether federal regulations violate the authority delegated to the
particular bureaucracy by Congress.
It may even, and I realize that this may strike some as little
different from believing in unicorns, cause regulators to rethink
the aggressiveness of proposed regulations. (OK, you can stop
laughing now.)
No doubt some in Congress will use this ruling to argue for
increasing that authority. They are unlikely to succeed even in a
Democrat-controlled Senate because coal-state and rust-belt
Democrats will not support rules designed to directly or indirectly
bankrupt some of their largest voting blocs.
In a somewhat frightening dissent, Circuit Court Judge Judith
Rogers leads off her disagreement with the panel’s majority opinion
by giving multiple reasons that the court should not even have
heard the case. I understand that the issue of standing is a
serious one, but when a judge in the second-highest court in the
nation must begin a dissent with that issue rather than the
constitutional issues at hand, it becomes that much clearer how
“progressivism” is a cancer that infects every branch of
government, in particular by destroying whatever part of a person’s
brain which holds any respect for principle. The majority responds
to the dissent’s issues in detail, but I will leave that for
interested readers to peruse for themselves.
Today was a victory in a small battle in our enormous war to
curb our leviathan regulatory state. The dissenting opinion is just
the latest reminder of the importance of the 2012 election for
things outside of Congress, Welfare, and the P90X workout
system.
