"In... the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules... without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?" This question is at the heart of West Virginia v. EPA, which is set to be heard by the Supreme Court on February 28. The case could be one of the most important in recent history, with severe consequences for the EPA's ability to regulate carbon emissions as well as the structure of the bureaucracy.
Background
West Virginia v. EPA challenges the Clean Power Plan, Obama's plan to fight climate change. The petitioners (coal companies and red states) want the Court to rule that the Clean Air Act of 1970 (one of the most successful environmental laws) doesn't authorize the Plan, which would limit the EPA's authority to reduce greenhouse emissions. Under the Clean Air Act, the EPA determines the "best system" of emission reduction for power plants. In short, the Act relies on Congress to lay out broad policy and delegates implementation to the EPA. As we've learned, this is effective because federal agencies are more efficient than Congress, have more specialized knowledge, and don't involve political backroom deals.
The Power of the Bureaucracy
However, the majority of justices don't think that federal agencies should set policy. Gorsuch in particular supports the major questions doctrine, which says that agencies can only issue significant regulation with instructions from Congress. The non-delegation doctrine goes even further, saying that Congress is Constitutionally barred from delegating "legislative" powers to the executive branch. According to this, most of modern government would be unconstitutional. Gorsuch's approach would also transfer power from the executive to the judicial branch, giving it the authority to strike down federal regulations on a range of topics.Questions
1. Do you think the major questions and/or non-delegation doctrines are valid? Why or why not?
2. What would happen if federal agencies were to lose this much power?
Sources
- https://www.vox.com/2021/11/3/22758188/climate-change-epa-clean-power-plan-supreme-court
- https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment
- https://www.bloomberg.com/news/articles/2022-01-10/challenge-to-epas-climate-authority-heads-to-supreme-court
- https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency
2 comments:
It's frustrating to see science politicized to a degree that has people challenging so much of government authority- but that seems to be becoming increasingly normalized. Federal agencies, as mentioned in this post, are a very large part of government productivity. They work to set policy that is supposed to suit the needs of the people and advisements handed to them, but some seem to be viewing these actions as a personal attack. Gorsuch’s major questions and non-delegation doctrines seem to be aiming to wholly dismantle the policy setting system in place in government today. While we’ve been thoroughly educated on the importance of the delegation of power and checks and balances in government, I think these doctrines are being counterproductive. Federal agencies are assigned the power of rule setting for a reason- they are filled with specialists and individuals capable of making necessary decisions in one particular field of life. If Congress had to instruct these specialists in their own expertise areas, not only does it seem like an insult to the basis of federal agency members, but it also limits the government's capability to make the most informed decisions regarding public issues. Although even this argument would be obsolete if the non-delegation doctrine was put into practice. Federal agencies are protected from easy strike-downs via the judicial system for a reason, and the breaking of this wall would again be disastrous for the government’s productivity. As we have discussed, the executive bureaucracy may seem insufficient or slow moving to the untrained eye, but without the agencies, the public would be worse off and have a greater lack of knowledge regarding their own business and well being. Really any effort to drastically decrease the power, rather the authority, of these agencies poses a threat to the American people which they work to serve.
If federal agencies were to lose the power to set policy, every new federal policy would have to either be passed by Congress or issued as an executive order. Since bills take a long time to get through Congress, progress in anything would most likely be slowed exponentially. Also, Congress having to look at an influx of new bills related to specific policies bureaucracies used to pass would slow progress down even more. Furthermore, if Congress had to pass specific policies rather than broad policy, the process of passing a new law would most likely slow down even more as congress members would/should have to do more research and speak to more experts about the policies they’re trying to pass. With all of the weight on Congress’ shoulders, policies might also be less adaptable to modern times as it seems like they can’t change policies as easily as bureaucracies can as Congress has to rely on their voting process. If the expectations for new specific policies were set on the president’s shoulders instead of Congress, those who see executive orders as an excessive amount of power would most likely get very angry and would try to limit the president’s power just as they’re trying to limit bureaucracies’ power. Either way, there would probably be a lot of dissatisfaction as things will either move too slowly for some or too undemocratically for others.
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