In a perfect example of legal hedging, the members of the Supreme Court of the United States (SCOTUS) today ruled 6-3 in favor of plaintiffs in “West Virginia et al v. Environmental Protection Agency,” a decision elucidating the majority opinion that the Nixon-era thug-club called the Environmental Protection Agency (EPA) can’t simply create and impose its own “carbon emission” diktats across the US.
It’s a ruling that could save a small number of coal-burning electric plants and some vestiges of the coal industry, while also signaling to other industrial sources of so-called “carbon emissions” that they, too, might be able to dodge further EPA diktats -- until Congress passes legislation allowing more of these onerous “regulations.”
The SCOTUS members came down in what might be an expected pattern, with the hardcore leftist/collectivist Kagan (fearing that the sea will swallow the earth), Sotomayor, and (soon-to-retire) Breyer dissenting, while the so-called “conservative majority” was, perhaps surprisingly, led by Chief Justice Roberts, who wrote the majority opinion, and Gorsuch offered a concurring opinion that Justice Alito joined.
At issue was whether a 2015 EPA “Clean Power Plan” rule tacked on to the 1970-creation called “Section 111” of the 1963 Clean Air Act was an unconstitutional usurpation by the agency of "Congressional authority."
And if you strict-constructionists notice some glaring holes in the foundation of that question, you’re not alone.
The SCOTUS majority opinion in the case spells out their limited – some might say myopic – view of the issue:
“In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing coal- and natural-gas-fired power plants. For authority, the Agency cited Section 111 of the Clean Air Act, which, although known as the New Source Performance Standards program, also authorizes regulation of certain pollutants from existing sources under Section 111(d). 42 U. S. C. §7411(d). Prior to the Clean Power Plan, EPA had used Section 111(d) only a handful of times since its enactment in 1970. Under that provision, although the States set the actual enforceable rules governing existing sources (such as power plants), EPA determines the emissions limit with which they will have to comply.”
And, just for reference, it was 2007 when the SCOTUS frivolously ruled that CO2 is a “pollutant” that can be “regulated” like others by the EPA – a ruling that led to the EPA making its 2015 move to crush the power industries trying to survive in a world of increasing political antagonism against a naturally existing gas which, itself, is utilized by living plants in their ceaseless need to extract carbon from the air and utilize it for physical growth.
“West Virginia led a coalition of Republican-leaning states and coal producers that asked the Supreme Court to weigh in and clarify the limits of the Environmental Protection Agency’s authority, raising broader questions about how far the regulatory authority of federal agencies extends. The coalition said powerful and wide-reaching policies should come from Congress, not agency-level regulators.”
And the SCOTUS majority agreed.
But let’s pause to be sure we understand the faulty assumptions already presented.
Take another look at the statement: “The coalition said powerful and wide-reaching policies should come from Congress, not agency-level regulators.”
George Mason, Thomas Jefferson, Thomas Gordon, John Trenchard, James Madison, and other profound thinkers of the Founding Era were men who either explicitly opposed the 1787 expansion of federal power pushed by centralizers like Alexander Hamilton or worked to include in the Constitution a Bill of Rights strictly prohibiting expansive readings of the enumerated powers in the Constitution. Their work bore fruit in the first Ten Amendments, the Tenth of which states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
And “wide-reaching policies” imposed by “regulatory agencies” like the EPA never would have arisen in the worst fever-dreams of those Founders. So, let’s not pretend that this SCOTUS ruling has even the slightest connection to the original intent of the people who wrote the very rules that created the very Supreme Court seats they occupy.
Yes, this ruling is beneficial in the short term, in that it strikes down destructive EPA-created “regulations”. Such “regulations” are prior restraints on legal activity that, unless a real person were to bring a real suit for real damages that he or she would be able to prove in court, should stand as peaceful actions and as part of the wide gamut of peaceful activity offered in the free market.
The EPA is not a person. The government is not a person. Based on Common Law standards, actions that someone takes should only see him in court if those actions are cited by another individual as having caused the plaintiff direct harm to life or property. That allows for a tortious claim to be proven before a jury.
Yet, for decades, since the 1963 Clean Air Act, and since Nixon created the EPA in 1970, and since the expansion of Section 111 in 2015, the feds not only have imposed more and more central controls and plans and restrictions on innocent people, most of the US population itself – including many who watch the SCOTUS – has become accustomed to the “regulations” and the agencies, and, worst of all, to the idea that the only problem that could arise is if these regulatory agencies do something “without Congressional okay.”
As Wolfe observes, Roberts wrote:
“’A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,’ the chief justice wrote, adding that the ‘EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute.’”
Here's a question for Chief Justice Roberts:
If the Congress passed a law creating a second Supreme Court, or a “More Supreme Court” that ruled over everything he and his fellow Justices did, would he so blithely tell people that it was fine because it was a “clear delegation from that representative body?” Or would the actual, WRITTEN RULES of the US Constitution have any bearing on his mind whatsoever?
Some might herald this ruling as a reprieve or reversal of EPA trends, and that it might be. But, as usual, it not only avoids the larger and more important question of just how the heck this Constitutionally-created federal government is supposed to be constrained.
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