The Obama Administration’s Attack on the Constitution: Part 2, Environmental Protection Agency

The Environmental Protection Agency has long been in the forefront of Obama administration lawlessness. Don’t forget: before Hillary Clinton’s secret email server came to light, EPA Administrator Lisa Jackson was conducting government business off the books as “Richard Windsor,” which, she explained when caught, was the name of her dog.

The EPA’s current usurpation, an effort to remake America’s power supply system, is much more serious. The EPA has proposed a far-reaching regulation of power plants that would drive many of them out of business in the name of global warming. The EPA’s proposed regulation constitutes a statutory framework that Congress perhaps could have enacted, but didn’t. It represents the most extreme case, so far, of an administrative agency run amok.

Tomorrow the House Subcommittee on Energy and Power will conduct a hearing on the EPA’s proposed regulations. Note that this hearing is taking place only because Republicans control the House; otherwise, the EPA’s scheme would go into effect without being questioned. One of the witnesses tomorrow will be my old professor and friend Larry Tribe, of Harvard Law School. Professor Tribe is the liberals’ most eminent constitutional law scholar.

Tribe may be a liberal, but he retains some regard for the Constitution, so his testimony will not be friendly to the EPA. You can read his prepared testimony here. Tribe concludes that the proposed EPA power plant regulations raise serious constitutional questions on multiple fronts, and are plainly unauthorized by Congress, which created the EPA and–theoretically, at least–controls it. His testimony is lengthy and detailed; if you have time, you should read it all. Excerpts don’t do it justice. Nevertheless, here are a few, starting with a description of what EPA intends:

The Environmental Protection Agency’s “Clean Power Plan” would command every State by the year 2016 to develop a package of EPA-approved laws requiring coal-fired power plants to shut down or reduce operations, consumers and businesses to use less electricity and pay more for it, and utilities to shift from coal to other energy sources–a total overhaul of each State’s way of life. Noncomplying States would face sanctions, including the potential loss of federal highway funds, and the takeover of their energy sectors by an inflexible federal plan of uncertain scope that would inflict significant economic damage.

EPA lacks the statutory and constitutional authority to adopt its plan.

The EPA has no apparent authority to enact this scheme, but it takes a broad view of its own powers. Professor Tribe writes:

EPA possesses only the authority granted to it by Congress. It lacks “implied” or “inherent” powers. Its gambit here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts. The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a “power grab.”

EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts, all at once. Burning the Constitution should not become part of our national energy policy.

Strong words. More:

EPA’s plan is a perfect illustration of the dangers inherent in permitting an unelected agency to restructure the U.S. economy on its own and the palpable unfairness of imposing all the costs on a small subset of entities within the agency’s cross-hairs. It is worth repeating Secretary of State John Kerry’s candid description of U.S. policy regarding coal-fired power plants: “We’re going to take a bunch of them out of commission.” Daniel P. Schrag of the President’s Council of Advisers on Science and Technology explained: “The one thing the president really needs to do now is to begin the process of shutting down the conventional coal plants.”

We’ve known that for a while. When Obama’s EPA acts, one always wonders: does it actually have anything to do with the environment, or is it just an opportunity for Democratic Party graft? In this case, Gina McCarthy answered the question candidly:

As EPA Administrator Gina McCarthy testified before the Senate Environment and Public Works Committee on July 23, 2014: “The great thing about this [EPA Power Plan] proposal is that it really is an investment opportunity. This is not about pollution control.”

The bulk of Tribe’s testimony is, of course, devoted to technical (but not at all incomprehensible) legal issues. Here are a few extracts:

[T]he plain text of Section 111(d) flatly and unambiguously prohibits EPA’s proposal. EPA has taken the view that CO2 (despite its naturally occurring role in respiration) is an “air pollutant” within the meaning of the Clean Air Act. But, under Section 111(d), EPA lacks the power to establish an emissions standard “for any air pollutant” – which under EPA’s own view includes CO2 – “emitted from a source category which is regulated under” Section 112. That should be the end of the matter.

It should indeed. But the Obama administration is brazen.

This bedrock principle, familiar to anyone who has taken a basic civics class in high school, has particular relevance when administrative agencies seek to expand their statutory mandates via Chevron deference. Here, EPA is flagrantly refusing to execute the House version of Section 111(d) and is instead seeking to operate as a junior-varsity unicameral legislature. …

In the end, EPA resorts to arguing that it has implied power to ensure that there are “no gaps” in Clean Air Act regulation. But administrative agencies lack any such “implied” or “inherent” powers; they are creatures of statute and possess only the authority Congress has given them. Moreover, there is no “gap” in authority here.

There is much more at the link. Is administrative law unlawful? There is a substantial argument that it is. More narrowly, it can hardly be denied that what the EPA is doing, in attempting to refashion the nation’s electric power production system with no authorization from Congress, is both illegal and unconstitutional. Once again, the Obama administration is running roughshod over our Constitution and laws, and daring the rest of us to do anything about it.

Which raises this point: Professor Tribe was commissioned by Peabody Energy Corporation to provide an analysis of the EPA’s power grab. No doubt this fact will be seized on by lefties to discredit his testimony. To which I would respond, if independent businesses don’t resist the Obama administration’s unlawful encroachments, who will?

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