Kavanaugh opens door to carbon rule challenge

From E&E News

Niina H. Farah, E&E News reporter Energywire: Monday, December 9, 2019

About the non delegation doctrine:

A recent opinion by Justice Brett Kavanaugh could be a sign the Supreme Court will consider the scope of authority Congress delegates to federal agencies.

How much authority should federal agencies have in shaping regulations like the Clean Power Plan, and how much of that work should fall to Congress instead?

Some legal experts say that question could become a focus for the Supreme Court’s conservative majority now that Justice Brett Kavanaugh has signaled interest in reconsidering the scope of agency powers (Greenwire, Nov. 25).

Court watchers say Kavanaugh’s addition to the bench could open the door to a revival of the long-dormant nondelegation doctrine, which prevents Congress from handing off policy decisions to federal agencies.

The return of the doctrine, which the court has not used to scrap an agency rule since 1935, could pose a threat to greenhouse gas regulations, said UCLA law professor Ann Carlson.

“The basic idea is that if Congress hasn’t specifically addressed a question, then for an agency to take up that question and regulate on it — particularly when there has been a relatively large passage of time since Congress spoke — it shouldn’t and can’t do so, at least in expansive ways,” Carlson said.

Litigation over the repeal and replacement of the Clean Power Plan could test conservative interest in bringing the nondelegation doctrine back into play.

Critics of the Obama-era Clean Power Plan have argued that EPA overstepped its authority when it drafted a rule to systematically slash emissions from power plants. Under President Trump, the agency has ushered in the less-stringent Affordable Clean Energy rule and has asked a lower court to find that the 2015 regulation was not allowable under the Clean Air Act (Energywire, Nov. 5).

Although the Supreme Court can only take a small number of cases each term, observers largely anticipate that the justices will eventually weigh in on the issue.

If it does, Kavanaugh last month offered a fresh piece of evidence that the justices may be open to limiting the authority of federal agencies like EPA.

The newest member of the Supreme Court wrote that while he agreed with his colleagues’ decision not to take up a recent petition centered on nondelegation claims, Justice Neil Gorsuch’s “scholarly analysis” in a related case “raised important points that may warrant consideration” in the future.

That case, Gundy v. United States, went to argument before Kavanaugh was confirmed to the court.

Carlson noted that the three other members of the Supreme Court’s conservative wing — Justices Samuel Alito and Clarence Thomas and Chief Justice John Roberts — have all signaled interest in considering nondelegation claims (Greenwire, June 20).

“That suggests now that there are five justices who want to revive the nondelegation doctrine,” Carlson said. “That could have profound consequences for agencies, but how profound really depends on the actual decision being rendered on nondelegation grounds.”

Jonathan Adler, an environmental law professor at Case Western Reserve University, also said Kavanaugh’s opinion was significant because it suggested support for reviewing the scope and authority of agencies.

“I think the majority on the court is wary of agencies having too much discretion or too much ability to make broad policy choices, but precisely how that is going to manifest itself is something we’re going to have to see,” Adler said.

Enter the Clean Power Plan:

As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh favored a very narrow reading of the landmark 2007 climate case Massachusetts v. EPA, which paved the way for Obama’s EPA to draft the Clean Power Plan and other climate rules, Carlson said.

“I think it’s safe to predict that had he been on the court at the time, he would have ruled against Massachusetts” and other states that called on EPA to regulate emissions, she said.

And the money shot:

Well before Kavanaugh weighed in on the nondelegation doctrine, EPA would still have had a hard time placing “meaningful limitations” on greenhouse gas emissions without climate legislation, Adler said.

The Supreme Court in the 2014 case Utility Air Regulatory Group v. EPA “made that clear that most of the relevant portions of the Clean Air Act are not written in ways that easily apply to greenhouse gases, and the Supreme Court made clear in UARG that EPA couldn’t try to ignore that in developing regulations,” Adler said.

Full articlie here.

55 thoughts on “Kavanaugh opens door to carbon rule challenge

  1. Being a Australian I find the USA and Supreme Courts dependence on Agencies confusing. It seems to me to be a case of th delagates in the two houses keeping the decision making “”At arms length”

    Not my fault, a agency did it””

    MJE VK5ELL

    • That is actually very accurate.

      Congress delegated their authority to agencies with the phrase “the secretary shall determine…”, which means the agency can do what it wants and it is considered as part of the passed law. Even more worrying, congress passed provisions allowing the agencies to set up their own court systems (administrative law judges) that impose penalties on those found to have violated the agency created law. Citizens have little recourse in these situations except to file suit in a real court, where the judges typically sidestep any procedural abuse questions and send the thing back to the bureaucrats to decide. This has the effect of giving an out-of-control administration the ability to be legislator, administrator, and judge, jury and executioner all on their own. It is a definite abuse of the concept of separation of powers.

  2. Hallelujah! The regulations that rule our lives should be subject to some kind of democratic process. Requiring Congress to OK regulations drags the rule making process out from under a rock into the light.

    The other thing is that, having Congress vet regulations, sets a limit on how fast new regulations can be passed. That’s good. We already have too many regulations. link

    • Agreed!
      The Obama era method of activists writing regulations for the EPA and other agencies; which then publish the thousands of new regulations in the Federal Register must be hamstrung and exposed to sunlight.

      That so many of the government agencies and departments have freely written regulations completely outside of explicit Congressional law is a travesty.

      • I wonder why people have not spoken up and refused to follow regulations that act as laws that were not passed by congress. Not passed by congress, then it is not a law or a rule that one need follow. In fact all such rules should require that all levels of government vote and sign off on them. Then the people know just who to go after when the rules prove onerous.

        • The problem is so much of it is given the imprimatur of respectability by the laws passed which are riddled with phrases like “the secretary shall determine…” on subject after subject. Congress has been giving carte blanche to the bureaucracy to create law out of whole cloth for some time. Ostensibly, the rules must be directly related to one of the secretary shall determine subjects, but bureaucracies being what they are, they try expanding into whatever subject they can pretend is related. Since the federal courts usually refuse to hear cases of administrative law abuses, this has never been reined in.

  3. The Left knows they lost big time when Brett Kavanaugh was confirmed to the Supreme Court. Not just on climate scam issues like the Endangerment finding and Obama;s CPP eroding State’s Rights, but on everything they had hoped for – gun grabbing, restricting free speech, limiting religious freedoms, doing an end-around on the Electoral College, and ignoring immigration laws.

    The Libtards have for a long time depended on judicial activism (judges writing new law whole-cloth) and Chevron Deference for the Executive branch to do so as well. The Democrats purposefully neutered Congress, both the Treaty Ratification Powers of the Senate (Obama’s Paris Climate Agreement and Iran Deal) and Power of the Purse.

    Beyond the EPA CO2 endangerment GHG finding that created regulations based on nothing in the originating legislation…
    – Obama misappropriated $1Billion from the State Dept to send to the UN Climate aid Fund.
    – Democrats in Congress created an Executive Agency (CFPB) with a single director who gets his agency’s money from the Federal Reserve, not congressional appropriations.
    – Obama’s CMS re-wrote huge sections of ObamaCare implementing regulations and instruction counter what Congress had passed in the ACA because what Democrats passed was such a mess and they lost the House in 2011 (November 2010 midterm) to be able to make the changes they needed.
    Those and SO many other examples exist of how Democrat’s entire strategy had been based on a Liberal Supreme Court to rubber-stamp approve it all.

    Which is why none of the Libtards running for President will answer a question about the Democrat’s Supreme Court Packing plans (adding 4 new Liberal Justices to the 9 current Justices in order to pack the Court with Liberals). But you can be sure they plan to if the Democrats can win the White House and the Senate next year.

    And if y’all thought the Kavanaugh confirmation in 2018 was a Democrat schist show of complete douchebaggery from Feinstein and Schumer, just wait till the RBG coming replacement is announced by Trump. Justice “Notorious RBG” ain’t doing very well if you hadn’t heard.

      • She’s doing fine … until she isn’t. She’s 86 and has had a number of health scares in the past year alone. If Trump gets re-elected she’ll need to hang in there until she’s a little over 90 to prevent Trump from appointing her replacement.

      • LOL.
        Indeed, the boyz and girlz at Disney World’s animatronics section are working hard to build a believable, realistic RBG2.0.
        Apparently the Liberal wagging finger realistically synched to lips and and scowl is the hard part.

    • Not only that, but they went “all in” against a relatively moderate judge.

      And now they can’t pull the Kavanaugh-style circus again because nobody would pay attention.

      Well, they can, but it would look even more terrible.

    • Joel O’Bryan – December 9, 2019 at 11:42 pm

      And if y’all thought the Kavanaugh confirmation in 2018 was a Democrat schist show of complete douchebaggery from Feinstein and Schumer, just wait till the RBG coming replacement is announced by Trump. Justice “Notorious RBG” ain’t doing very well if you hadn’t heard.

      The Democrat hierarchy is scared “shirtless” that if they cannot get Trump thrown out of the White House and also reclaim their socialist liberal control over Supreme Court decisions, ….. then they had better “retire” from politics post haste and take their ill gotten wealth and move to a tropical island.

      It’s ….. “do or die” …. for the Democrats.

      • They are so entangled in corruption and abuse of power there is no “out” for them. As Hillary was quoted as saying if Trump won, “We’re all going to hang”.

        Snopes says its false (which we expect it would), so it my be true?
        https://www.snopes.com/fact-check/hillary-clinton-noose/

        Trump threatened to imprison her several times before the election, which was probably just stage bravado and trying to put her off-side. But I believes it’s also likely she could have said something along these lines within her own ranks.

        • “threatened to imprison her several times before the election, which was probably just stage bravado”

          Allegedly, that was dictatorial and the end of democracy when Trump suggested it, for violation of clear laws that the average American understands and can explain in his own words (laws for which that non lawyer can also spell out conter examples of non illegal conducts).

          Since then, the anti Trump alliance has been trying to find anything that can be made to be against for of the silliest verse of criminal law, including the inept “conspiracy against the US” or random interpretation of “obstruction” and other pure garbage.

          They did the same against Trump team members, using the garbage laws like Logan Act, or garbage interpretation of laws (Hatch Act applied to WH political appointees, something probably never dreamed of, ever).

  4. What a novel idea, limiting the EPA from walking all over the Constitution and instituting law based on pseudoscience. Wow. This is my shocked face.

  5. *************************
    I’m not in the USA, and my background is a person who HATE anything resemble socialism or associated BS.
    I lived half of my life under one…
    So, dear American friends what chance he or POTUS has? There is only one Mr Trump, who has the ‘balls’ to take on the Lefties. He is 72(?) … so, who would be next? Who would continue to unfold the cobweb of deceit by the Left and big business? Social (re)engineering, UN power transfer etc.
    Do we have a chance?
    *************************
    (the tone of my post is ‘angry’ instead of pessimist… my lack of English and spell-check not helping…my apologies)

    • “Do we have a chance?”

      Yes, Mick, we have a good chance. Trump is going to win reelection, while the radical Democrats and the Leftwing Media are self-destructing.

      They took some polls a few weeks ago in battleground states (states Trump needs to win) and the Democrats were ahead of Trump by a couple of points. Yesterday it was reported that after all this impeachment BS another battleground states poll was taken and Trump is now ahead of ALL the Democrats by several points.

      This sham impeachment is making Trump stronger and the radical Left weaker.

      The Democrats are supposed to tell us the terms of the impeachment this morning in a little over an hour from now. If preliminary reports are correct the Democrats will charge Trump with Obstruction of Congress and Abuse of Power (the Democrats ought to know a lot about that subject, since that is what they are engaged in with this sham impeachment!).

      Apparently, by Obstruction of Congress, the Democrats mean that Trump did not cooperate with them in the inquiry. Trump did not, but Trump has Executive Privilege and has the option to declare it. The Congress can disagree with Trump’s claim of Executive Privilege, and then the proper procedure is for Trump/Congress to go to the Supreme Court for them to rule on whether Trump has to comply with specific requests from Congress.

      The Democrats have rejected this legal procedure and have refused to accept the Supreme Court as the arbiter of the question of whether Trump should comply with a request from Congress, and instead, have criminalized Trump’s intention to take the question to the Supreme Court, and are accusing him of obstructing Congress. This, befoe the Supreme Court has had a chance to hear any of these arguments. The Democrats have cut the Third Branch of Government completely out of their impeachment process.

      Trump is not obstructing Congress under these circumstances. If the Supreme Court were to rule that Trump had to comply with a request from Congress and then Trump refused to comply, *then* Trump could legitimately be charged with Obstructing Congress. As it stands now, this charge of Obstruction of Congress is a sham.

      As for the Abuse of Power charge, I don’t know exactly what the Democrats are going to point at so I don’t have anything to say about that until I do know. Which should be in about an hour. 🙂

      • Well, I just watched the Democrat impeachment drama and they are completely delusional.

        The Abuse of Power charge against Trump consists of the Democrats claiming Trump was soliciting Ukraine to interfere in the upcoming 2020 election. Their evidence for solicitation is the phrase Trump uttered during his conversation with Ukraine’s new president where Trump said “I would like you to do us a favor, though . . .”

        This charge would never hold up in court. It might be enough to get enough Democrats to vote for impeachment, but I think even that is now in doubt.

        When Trump said, “do us a favor” the “us” he was talking about was the United States. Trump was not asking for anything personal from the Ukrainian president. But, of course, the Democrats have distorted his meaning here and are claiming he is soliciting the president to interfere in the 2020 U.S. elections.

        If the Democrats do manage to get the votes to impeach, the Republicans in the U.S. Senate will have a field day with it, and it will go nowhere, and all the Democrat’s dirty little secrets will be exposed to the public. Bring it on!

        • But, of course, the Democrats have distorted his meaning here

          The Democrats and their enablers in the MSM have been doing that since he first threw his hat in the ring. Everything he says gets twisted out of all recognition into the worst possible light in order to fuel their faux outrage.

    • “…There is only one Mr Trump, who has the ‘balls’ to take on the Lefties. He is 72(?) … so, who would be next? …”

      There are some good young conservatives out there. For example, Elise Stefanik has recently been impressive.

  6. Good article, Eric. This puts a happy face on the first three years of President Trump getting a record number of federal judges confirmed and picking Supreme Court Judges. As Joel notes RBG isn’t doing very well health-wise and we could see another Supreme Court Judge added to President Trumps list of accomplishments. The EPA has been especially “weaponized” by Democrats, and their rulings, like adding CO2 to dangerous chemicals list, are outside anything congress would actually pass into a law. Remember the “Sagebrush Rebellion” in Nevada started when the BLM wouldn’t allow rural road repair or maintanance, thus allowing areas to transition into “Roadless Areas”.

    • From Twitter: “Scientists are contemplating a 1,000-year space mission to save humans

      Relocating the human race to a hospitable planet would mean that multiple generations would be born in-transit. Despite huge obstacles to making this journey, we may find value long before the trip itself from ancillary benefits of the research.”

      Ridiculous!

      There’s no need to travel to another solar system. These “visionaries” can just relocate humans into various orbits in our home solar system using large artificial space habitats with all the comforts of Earth including artificial gravity. Go talk to Jeff Bezos.

      Remember how Tabby’s star was at one time thought to possibly have an advanced civilization orbiting its home star in what is called a “Dyson Sphere”, using the star’s energy to power the civilization? That’s the future for our solar system if humans survive long enough and learn how to live together enough.

      We don’t need to be planning generational starships. Let’s wait until we bypass the speed of light law.in some way. Meanwhile, there is plenty of “real estate” in our home solar system.

      Onward and outward! 🙂

  7. The Legislature does need to delegate powers to the various Executive Agencies. They cannot micromanage every day decisions. Drafting laws rationally can define boundaries that work adequately in most cases.

    But when unelected Agency regulators are free to make $Trillion decisions, the electorate needs protection. Legislatures need to design the laws to reflect the interests of the voters, and give them proper oversight.

    Legislators like handing-off tough or unpopular decisions…because it also “hands off” responsibility. “Hey, don’t look at me for your electricity bills doubling last year…the EPA did that to you…because Climate.”

    This is a pivotal topic. Irresponsible delegation and weak oversight has, over the years, brought us the unelected Deep State…and gave too much of our Government over to a HUGE pack of anti-American Socialists… with ALL of its allegiance given to the Government-Power-Loving Democrats…with “cover and support” from their puppets in the MSM.

    That’s how Americans lost control of their government.

    We should expect a few more Kavanaugh gang rape victims (better prepared this time) to come forward…to, once again, rescue their Deep State.

    • “Legislators like handing-off tough or unpopular decisions…because it also “hands off” responsibility. “Hey, don’t look at me for your electricity bills doubling last year…the EPA did that to you…because Climate.”

      And the Supreme Court should be concerned about this as well as all Americans. Bureaucrats are not elected by the people and should not be granted sweepng powers over the people.

    • If you had the agencies write up the regulations they want to implement, and then have congress vote on said regulations, with time for both sides to have people review and look for problems it could be done. Maybe it would keep them busy enough to actually earn their pay instead of wasting time on things like impeachment because Orange Man Bad.

      • and then have congress vote on said regulations, with time for both sides to have people review and look for problems

        as we’ve seen with the impeachment farce, one side doesn’t wish to give the other side a fair shot at “having time to review and look for problems”. So much easier to get your way when you block the other side from having any meaningful input.

  8. With courts of all kinds being filled with Trump appointees, during his 2nd term the Democrats, and the left, will soon find out that they’re living in a whole new legal era. Hopefully these judges will get to repeal many of the Clinton/Obama cry-baby laws and agency rules — removing legal restriction to Make Americans Free Again!

  9. I don’t understand what a clean air act such as you mention could have to do with CO2. Toxic emissions, mostly from coal burning and vehicle exhausts need to be reduced as affordably as possible, but CO2 and water vapour are natural gases essential to life on Earth, inherently clean. To name them as pollutants that must be reduced because they are somehow dirty or harmful to health or the environment is false in observed fact, makes the law an ass, and any such law should be repealed as simply wrong – in the fact of provable science.

    • Brian,
      You are, of course, right.
      But when did being right ever matter in politics?

      In the USA, or in the UK – or anywhere else, for that matter.
      One example –
      The Technocrat Macron, in France, is reasonably seeking to increase the pension age from 60 – as French folk are living much longer then when that was set [1940s??].
      Cue widespread Francophone hysteria, winkling out of cobble stones, and lobbing of same at any organ of the state available. “I must have my pension at 55!” and such wording.
      Yet Little Emanuel is right – on pension ages.

      The Gilets Jaunes are right on the mad rush to kill Western Civilisation [and Macron is badly wrong there!].

      Auto

  10. The last time Congress made any laws concerning the EPA was in 1990 with the Clean Air Act Amendments, which affected six criteria pollutants: SO2, nitrous oxides (NOx), carbon MONoxide, lead, total “Volatile Organic Compounds” (which contribute to ozone formation), and particulate matter less than 10 microns in diameter, called PM-10. Some of the thresholds for these pollutants were reduced at that time.

    Since then, EPA has added three new criteria pollutants: particulate matter less than 2.5 microns in diameter, mercury, and CO2. No one contests the fact that mercury and small particulates are toxic, but prior to the 2007 “endangerment” finding, carbon dioxide was not considered to be a pollutant, for good reason (we all exhale it).

    The “endangerment” finding by the Supreme Court in 2007 allows, but does not require, the EPA to regulate CO2 emissions. The EPA under the Bush administration chose not to regulate CO2 emissions, but Obama wanted to keep his promise to “stop the seas from rising”. He first tried to have a “cap and trade” law on CO2 emissions passed by Congress, which passed the House but failed to get a majority in the Senate despite Democrats having a 60-vote majority, since many of the Senate Democrats in 2010 came from coal-producing states, whose economies would have been gutted by the measure, so they voted against it.

    The EPA under Obama therefore drafted a greenhouse gas “rule” in 2010, which affected industrial facilities emitting more than 100,000 tons per year of CO2 (this was later reduced to 75,000 tons per year). This “rule” required large emitters of CO2 to comply with Title V requirements for imposing “best available control technology”. This technique has been used successfully in reducing emissions of other pollutants, where commercially feasible control technologies exist that can capture 95%+ of uncontrolled emissions, but there was a conundrum with CO2, since control technologies didn’t really exist since nobody had ever tried to limit CO2 emissions, considering them to be harmless.

    This “greenhouse gas” rule hit electric power companies the hardest, and led to many projects to build coal-fired or even natural-gas-fired power plants being abandoned. The 100,000 ton/year threshold for CO2 corresponds to about 130 MW of heating value of methane, or about 40 to 50 MW of power output. However, most commercial gas turbines are rated for about 250 MW of power output, meaning that a power plant with even one gas turbine could not receive a permit. This EPA policy tended to favor the development of small generating facilities in the 1 to 5 MW range, each of which emitted less than 100,000 tons/yr CO2 without controls, but were much less efficient than commercial gas turbines, and actually increased the CO2 emissions per MW generated.

    The 2007 “Endangerment Finding” was passed by a 5-4 majority, with Anthony Kennedy joining the four liberal justices (Ginsburg, Breyer, Stevens, and Souter) in the majority. Since then, Stevens and Souter have been replaced by two other liberals Kagan and Sotomayor, and conservative Scalia has been replaced by another conservative Gorsuch. Since the other justices who dissented in 2007 (Roberts, Alito, and Thomas) are still on the Court and would be expected to vote the way they did in 2007, Kavanaugh (who replaced Kennedy) becomes the deciding vote, and his opinion could strike down the “Endangerment Finding”.

    The question before SCOTUS this time is not limited to CO2, but whether an agency under the Executive branch can declare any substance a regulated pollutant independently from a vote of Congress. Since Congress has not passed a law regulating the EPA since 1990 (29 years ago), some justices may balk at restricting the EPA too much (for example, benzene was discovered to be carcinogenic after 1990), and may write opinions restricting their judgment to CO2.

  11. The return of the doctrine, which the court has not used to scrap an agency rule since 1935, could pose a threat to greenhouse gas regulations

    Exactly, and put the responsibility to create those regulations back on Congress, the representatives of the people, where it belongs. They will have to study the issue, listen to their constituents, and debate it to decide if we need any “greenhouse gas” regulations; the legislative process the wise Founding Fathers intended, and wrote into the Constitution.

  12. The main purpose of the Clean Air Act, as I remember, was to correct the worsening smog problems in larger cites. It was quite successful in removing “dirty” smog. But CO2 is not unclean or “dirty”, so the Clean Air Act should never have been applied to regulate it. A separate law should have been passed.

  13. I am still hoping that soon President Trump will show America and the world how Republicans deal with CO2 Emissions. With the technology of Carbon Capture Utilization the CO2 gets converted into good paying full time jobs and money.
    It uses an agriculturally grown vegetable as part of a Sorbent that will absorb over 90% of the CO2 out of the combusted coal exhaust. This earth based sorbent then is transformed into other earth based products that can be sold and be used to pay wages and expenses.
    Coal fired power plants will be in compliance with obama’s Clean Power Plan. When operating they will be putting into the atmosphere less CO2 than the most efficient natural gas fired power plant.

    • Sid Abma,
      You are like a broken record. You keep pitching the same thing. We don’t need to capture CO2. It is not a pollutant and is not harming the planet. It is the most important gas in our atmosphere, without it we have no plants, without plants we have no animals. Since we are animals, there would be no us.

  14. The very first sentence in the Constitution says: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
    If we allow the EPA or other federal agencies to write rules that carry the force of law then we will find ourselves governed by unelected and unaccountable federal bureaucrats. You can’t call that a democracy or a republic. Maybe you should call it tyranny.

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