Symposium: Constitutional first principles and the greenhouse gas cases

The following contribution to our greenhouse gas cases symposium comes from Howard Nielson; Mr. Nielson is a partner at Cooper & Kirk PLLC and a Distinguished Lecturer at the J. Reuben Clark Law School at Brigham Young University.

In adopting the regulations now before the Court, the EPA construed specialized provisions of the Clean Air Act designed primarily to regulate a limited number of air pollutants for which the EPA has established “National Ambient Air Quality Standards” to apply to any airborne compound regulated under any provision of the Clean Air Act, including carbon dioxide and other greenhouse gases. To avoid the staggering costs and administrative burdens that would otherwise result from its expansive interpretation, the EPA purported to alter specific, numerical permitting thresholds that Congress itself had written into the Clean Air Act in black and white.  Specifically, although the statute requires permits prior to new construction for stationary sources that have the potential to emit 250 tons per year (or, in some cases 100 tons per year) of covered pollutants, the EPA purported to require permits for stationary sources emitting greenhouse gases only if they have the potential to emit 100,000 tons of such gases per year.  What is more, the EPA claimed the power to make further alterations to these thresholds on an ongoing basis.

This the EPA cannot do.  As the Supreme Court correctly held in the line item veto case, our Constitution prohibits “unilateral Presidential action that either repeals or amends part of duly enacted statutes.”  This rule is compelled by the separation drawn by our Constitution between the power to make law and the duty to execute that law.  On the one hand, Article I vests all federal legislative power with Congress, and the President’s role in the lawmaking process is limited “to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” On the other hand, Article II mandates that the President “take Care that the Laws be faithfully executed.” As the Supreme Court famously underscored in the steel seizure case, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

To be sure, the Supreme Court has long recognized that if the federal government is to function, Congress must be permitted to delegate to others some of the power that it could exercise itself.  It is thus well settled, as Chief Justice Marshall explained in Wayman v. Southard, that Congress may establish “general provision[s]” by statute and delegate “power . . . to those who are to act under such general provisions to fill up the details.” Conversely, the courts generally defer to the reasonable interpretive judgments of executive branch agencies charged with implementing legislation where “Congress has explicitly left a gap for the agency to fill,” or even where the statute is merely “silent or ambiguous with respect to [a] specific issue.”

Limiting these doctrinal accommodations of the practical realities of governance is the understanding that “rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law” but only the power “to carry into effect the will of Congress as expressed by the statute.”  Under the delegation doctrine, this understanding is enforced by the requirement that statutes at a minimum lay down an “intelligible principle” to which those who implement them must conform.  The same understanding is enforced by the well-settled principle of administrative law that where “Congress has directly spoken to the precise question at issue . . . the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” The net effect of these related doctrines is that executive branch rulemaking “is always subject to check by the terms of the legislation that authorized it” and “[t]he courts, when a case or controversy arises, can always ascertain whether the will of Congress has been obeyed, and can enforce adherence to statutory standards.”

Here, the EPA has purported to alter – indeed to increase by a magnitude of 40 to 100 times – unequivocal numerical thresholds that Congress itself established with specificity in a duly enacted statute.  More startling still, the EPA has claimed the power to make additional changes to these statutory thresholds on an ongoing basis.  This cannot be justified as “filling up the details” of “general provisions” established by Congress.  Congress has not “explicitly left a gap for the agency to fill,” nor is the statute even “silent or ambiguous with respect to the specific issue” here.  Rather, the power the EPA has purported to exercise here amounts to nothing less than a “unilateral power to change the text of duly enacted statutes.”  The exercise of such power by the executive branch cannot be reconciled with constitutional precept, practice, or precedent.  Indeed, the power asserted here is in many ways more troubling than the “cancellation” power invalidated by the Court in the line item veto case, which Congress had purported to authorize and which was limited to certain types of tax and spending measures.

In light of the staggering costs and administrative burdens that would result if the statutory permitting thresholds were applied as written to carbon dioxide and other greenhouse gases, the EPA argued that rewriting these thresholds was justified under the absurdity doctrine, and other more novel purported doctrines to similar effect.  But these doctrines are unavailing when the absurdity results solely from an agency’s interpretative choice.  As the Supreme Court recently explained, where “[i]t is the Government’s own misreading that creates the need to ‘fix’” a statute, the proper remedy is not to rewrite the statute but to “reject” the Government’s interpretation so that “no absurdity arises in the first place.”

Although the D.C. Circuit held otherwise, the EPA’s interpretation was not compelled by the statute.  To be sure, the permitting thresholds apply to the emission “of any air pollutant.”  And in the context of the Clean Air Act’s motor vehicle emissions program, the Supreme Court interpreted the phrase “air pollutant” to include “all airborne compounds of whatever stripe” – regardless of their potential for harm. But the motor vehicle emissions program does not apply to all “air pollutants,” however broadly that term is interpreted, but only to those the EPA determines may “endanger public health or welfare.” Neither the EPA nor anyone else has argued that the stationary source provisions – which have no analogous endangerment limitation – should be read to apply to all airborne compounds without qualification. After all, requiring permits for every facility that emits 100 (or 250) tons per year of an entirely harmless airborne compound (steam, perhaps) would impose untold costs on countless facilities that in no way endanger air quality.

Rather, the question here is whether the stationary source provisions should be read to apply to air pollutants regulated under any program of the Clean Air Act, or to apply only to those pollutants for which the EPA has established standards under the specific program of which the permitting thresholds are part.  Leaving aside the practical difficulties created by the first reading, there are good reasons to think the latter reading correct, as Judge Kavanaugh explained in detail.  But at a minimum, the claim that the former reading is compelled by the statute is simply wrong, and that alone removes any justification for rewriting the permitting thresholds to accommodate the EPA’s interpretive choice.

No doubt the EPA’s action reflects sincere frustration with Congress’s apparent inability or unwillingness to address what many regard as a critical and pressing problem.  And, in sharp contrast to the cumbersome legislative process, “executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency.” But even those who support the EPA’s policy objectives should pause to consider the potential price of an executive empowered not only to enact rules and enforce the law within the bounds set by Congress, but to disregard even explicit statutory limits in pursuit of its own policy objectives.  For as Justice Jackson memorably put it long ago, despite “all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”