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Comment by lolinder | Hacker News Reader

From the end of the ruling (emphasis added) [0]:

> Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible "solution to the crisis of the day." But it is not plausible that Congress gave the EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.

It seems pretty clear that Congress does have the authority to delegate, but that the Court ruled that Congress didn't intend to do so. This ruling places the ball firmly in Congress's court, it doesn't rule that Congress cannot act.

[0] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

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"Clear delegation" is the key phrase, there. The Court rejects the idea that Congress can create broad grants of authority and instead propounds the idea that it has to explicitly authorize every potential scenario.

They talk elsewhere about "clear delegation", and it doesn't have to do with the scope of the delegation, it has to do with its precision:

> Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.

I can find nowhere where they say that Congress cannot delegate broad powers, only that it's not obvious that Congress did or that they intended to. Do you have a citation to the contrary, or are you making assumptions based on the news coverage?

Requiring Congress to precisely enumerating every possible use of authority indefinitely into the future is by definition limiting the scope of authority that Congress can delegate.

Imagine Congress passes an act next year banning abortion, and creates a new agency to enforce that act. The next year, a new method is invented that can induce abortions. Can that agency regulate it? By the logic of the Court, it can't, because Congress never explicitly authorized regulation of that particular form of abortion (because it didn't exist yet).

You're still assuming that the Court says Congress needs to enumerate powers. I don't see that. I see the Court saying that Congress didn't explicitly grant broad powers. Do you have a citation that shows that the court is saying that Congress cannot grant broad powers?

You can read the particular text granting the authority here:

https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...

If you think that isn't a broad, explicit grant of authority to regulate air pollution from stationary sources, I don't know what to tell you.

The majority on the decision are basically saying, "well, my gut says they didn't mean that much authority, so we're going to shut down this program."

The specific delegation is the power to set "standards of performance," which is explicitly defined: "term 'standard of performance' means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction...."

The term "system of emissions reduction" means control technology like scrubbers. What the law says is that the EPA can do is look at the state of the art for things like particulate matter scrubbers, and set an emissions standard based on the reduction that can be achieved using those technologies.

But it's infeasible using current technology to scrub out CO2 from power plant emissions.

> The term "system of emissions reduction" means control technology like scrubbers.

So the Majority asserts. The law, however, specifies nothing of the sort and intentionally uses broad phrasing.

The plain meaning of "system of emissions reduction" is "a set of measures that work together to reduce emissions" (as the EPA itself points out). And this is consistent with usage elsewhere in the Clean Air Act: in it, Congress refers to a cap-and-trade setup as an "emission allocation and transfer system." Systems clearly can be things that aren't just control technology.

The Majority is inventing an arbitrary and unsupported narrow definition of system for ideological reasons.

Sorry, that’s wrong. The word “system” is obviously broad, but the term “system of emissions reduction” is used within the statute to refer to emissions control technology.

Apart from being clear from the individual statutory provisions, that’s the premise of the statute as a whole. The whole idea was that the EPA could limit emissions to the point that existing point sources could go out and buy equipment to meet the emissions criteria. The statute thus talks about BACT versus RACT and LEAR and whatnot. (I took a bunch of classes in environmental law in law school.)

If you read “system” to be a nonce word that can refer to any possible measure, then the statute makes no sense. The EPA could just pick an arbitrary emissions limit, and demand industry-level restructuring to hit that limit. That’s exactly what Congress was trying to avoid by imposing that requirement.

(cribbing an argument from the dissent)

The statute as a whole clearly delineates between when it means to limit authority to technological systems of control. Elsewhere in different provisions, Congress declined to give the EPA broad authority as it does in 111, using phrasing like

"reflect the greatest degree of emission reduction achievable through the application of technology."

"best available retrofit technology"

"best available control technology"

"maximum achievable control technology"

Congress clearly was conscious of the difference between technological systems and more general ones, and it declined to limit the EPA's authority here to technological systems.

The Clean Air Act had a bunch of terms referring to different technological levels. “Reasonably Available Control Technology” applies in certain cases, “Best Available Control Technology,” a more stringent standard, applies in other cases. It’s fair to read the term “system of emissions reduction” in section 111 as being broader and more general than that and encompassing those specific things.

But the fact that those other things are all emissions control technologies strongly suggests that “system of emissions reduction” is referring to a some kind of emissions control technology, not a wholesale change in the operation of the industry.

If a statute addressed SVN, git, Mercurial, and CVS, and then had a catch all referring to “system for version control,” how would you read the meaning of the latter term?

Look at it this way. Wouldn’t it be odd for Congress to go to all the trouble of enumerating all these levels of emissions control technologies that apply in different situations (new sources versus old sources) and then have this catch-all provision that gives the EPA sweeping powers far beyond unrelated to emissions control technologies?

You should read the whole law. It does limit their ability and has checks in balances of which they have over stepped. It is that simple.[0]

The court has stated if they want to extend their authority to the level they are enacting then congress must pass laws to expressly denote that intention.

States have rights in the original law. They are exercising this right and the court has agreed with them.

I think the last sentence in the original article sum's up why people are truly upset. Remember the court didn't say the EPA can't do these things in the future just that Congress would have to give it the authority.

From the original article:

"It's now clear this court will turn a sceptical eye to agency attempts to cite vague or broad laws to enact any sort of major regulatory changes. That's a significant development, given how difficult it has been for Congress to pass substantive new legislation in recent years. The time when presidents could find unilateral "work-arounds" in existing law may be coming to an end."

[0] https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...

Congress did explicitly grant that authority to the EPA: particularly it gave the EPA the authority to set "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction."

Where, exactly, are you claiming that the EPA ran afoul of the law?

"The term "standard of performance" means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact"

Note the portion that states "taking into account the cost of achieving such reduction". This is in the very first paragraph. The argument is that they have not adequately done this.

The ruling doesn't claim the EPA didn't take into the cost of achieving the reduction in pollutants; it claims that Congress didn't appropriately delegate to the EPA the authority to implement systems to reduce the pollutants.

>The time when presidents could find unilateral "work-arounds" in existing law may be coming to an end."

It's about damn time if you ask me. As a country we need to hold our elected representatives accountable. We send legislators to congress to legislate not to simply be talking heads who pass the buck.

Just read the dissenting opinions. That you chose not to, clearly, is a choice you made to avoid confronting differing viewpoints.

Also, consistently and repeatedly asking others to research for you is an easy debating tactic used frequently to bury inconvenient facts behind a barrage of requests.

“something more than a merely plausible textual basis for the agency action is necessary”

I love it when textualists go anti-textualist.

If people are going to espouse an absolutist ideology, they should at least be consistent.

"Beyond merely plausible" is what they're looking for, not "beyond textual".

When the consequences of an executive agency's rulings are a) not clearly within their delegated powers, and b) sufficiently far-reaching that Congress should have authorized them more explicitly, then it makes sense to say that Congress must be more specific.

From Kagan's dissent:

> Section 111(d) thus ensures that EPA regulates existing power plants’ emissions of all pollutants. When the pollutant at issue falls within the NAAQS or HAP programs, EPA need do no more. But when the pollutant falls outside those programs, Section 111(d) requires EPA to set an emissions level for currently operating power plants (and other stationary sources). That means no pollutant from such a source can go unregulated: As the Senate Report explained, Section 111(d) guarantees that “there should be no gaps in control activities pertaining to stationary source emissions that pose any significant danger to public health or welfare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that language, the majority calls Section 111(d) a “gap-filler.” Ante, at 5. It might also be thought of as a backstop or catch-all provision, protecting against pollutants that the NAAQS and HAP programs let go by. But the section is not, as the majority further claims, an “ancillary provision” or a statutory “backwater.” Ante, at 20, 26. That characterization is a non-sequitur. That something is a backstop does not make it a backwater. Even if they are needed only infrequently, see ante, at 6, 20, backstops can perform a critical function—and this one surely does. Again, Section 111(d) tells EPA that when a pollutant—like carbon dioxide—is not regulated through other programs, EPA must undertake a further regulatory effort to control that substance’s emission from existing stationary sources. In that way, Section 111(d) operates to ensure that the Act achieves comprehensive pollution control.

That's pretty damn explicit.

You are conflating "unclear" with "broad".

Congress gives the EPA the authority to set "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction."

That's pretty clearly a broad delegation of regulatory authority.

No, the key phrase is "magnitude and consequences." The whole point of the "major questions doctrine" is that routine scenarios can be delegated, but authority to address a sweeping nationwide issue cannot be justified on the basis of a delegation to address a limited set of scenarios.

To use an analogy, nobody is saying that the DOJ needs authority to create drug diversion programs. But this is like the DOJ pointing to the drug laws to justify a sweeping effort to combat the obesity epidemic.

The analogy here would be Congress granting the DOJ the authority to create drug diversion programs, a new drug hitting the scene that requires a response not explicitly called out in the initial legislation (e.g. distribution of naxolone), and the Supreme Court then declaring that response illegal because giving out naxolone just seems like too big a deal to be decided without involving Congress.

No it isn’t. The Clean Air Act is all about requiring polluters to use control technology, and requiring new sources to use better and more expensive control technology than existing sources. That’s the program Congress designed.

Restructuring the energy industry to address climate is a different solution to a different problem, related only by the commonality of emissions into air. It’s like using drug laws to regulate processed foods because both involve harm caused by ingesting things.

Consider this. What would happen to the powers of future Congresses if SCOTUS had ruled the other way? Would any agency granted broad authority be able to override the wishes of a future Congress? What would happen to our form of representative government under this case?

Congress can only delegate authority that it actually has itself. Read the 10th amendment of the constitution and it’s clear that Congress doesn’t have nearly as much authority as most of us apparently assume they do.

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