The EPA versus global warming
On Wednesday, Nov. 29th, the U.S. Supreme Court heard the case of Massachusetts, et al. v. Environmental Protection Agency, et al. It’s a fascinating case (at least for lawyers) in that state governments are arguing the federal government is ignoring its charge to regulate carbon dioxide emissions. The Wall Street Journal and the Associated Press both have good roundups.
To describe the situation in its most general terms, the federal government has, over the years, assigned rulemaking, adjudication and the enforcement of those rules/decisions to government agencies. This is commonly referred to as adminstrative law, and it has long been a target of libertarian criticism. Congress will pass a very general law directing a federal agency – in this case the Environmental Protection Agency – to regulate a broad area of commerce or the environment. The agency then draws up regulations to carry out Congress’ orders.
Although the practice may have started out innocently enough, it has left us with hundreds of thousands (and possibly millions) of pages of regulations that govern virtually every aspect of life. For lawyers, this is job security. For the economy, it is a massive unwieldy drain.
Among all of the rules was one passed by Congress directing the EPA to regulate pollutants with “adverse effects on public health, welfare or the environment.” The EPA claims that this doesn’t give it the authority to regulate carbon dioxide (CO2) and that, even if it did, the EPA could choose not to regulate it at this time. Massachusettes and 11 other states disagree, saying that because CO2 contributes to global warming, they are permitted to regulate it and in fact they are required to do so.
For environmentalists this is an interesting case, but I think it has an even larger impact on the future of administrative law and the balance of federalism. For now, at least, that future is in the hands of the Supreme Court.