Case Summary

In the American constitutional order, Congress makes laws. The President and federal agencies are tasked with executing, enforcing and sometimes interpreting those laws, in cases where Congress used ambiguous language. But how much latitude and discretion does the executive branch have when it comes to the interpretative part of its mission, if the text of the law isn’t clear? On that question a lot depends, given the vast regulatory power the modern administrative state wields like a hammer.

It’s that interpretative function that can raise constitutional concerns, if willful Presidents and federal regulators take unfair advantage of that discretionary function to make policy and create new law out of whole cloth, thereby usurping powers assigned to the legislative branch. The possibility that a headstrong President and unaccountable federal regulators would take advantage of this ambiguity, in order to bend, twist, and otherwise rewrite the law to his or her will is not an abstract concern. This potentially vests a headstrong President and unaccountable regulators with unparalleled and crushing powers, given the immense regulatory power wielded by today’s ubiquitous federal government.

The rise of the so-called “administrative state” has been much commented-on by close observers of the ongoing power shift. And recent Presidents have shown no reluctance about acting unilaterally in a bid to end run or ignore Congress. Barack Obama, in fact, bragged openly about his ability to use a “pen and a phone” to advance his agenda via executive action, when he lost patience with collaborative policymaking. And his unilateral imposition of a national “Clean Power Plan” arguably constituted the most audacious attempt ever to exploit ambiguities in the law to overhaul the nation’s energy sector, all in order to satisfy a single President’s whim.

This amicus brief urges the US Supreme Court to revisit a flawed recent court ruling that handed Presidents and unelected federal regulators “ample latitude” to interpret ambiguities in the Clear Air Act — including on “major questions” of momentous consequences to regulated entities — creating a loophole big enough to drive a freight train through. MSLF believes that granting the executive branch such wide and open-ended discretion fundamentally upsets the system of checks and balances the Founders envisioned, as codified in the US Constitution.   

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Status

Court

Supreme Court of the United States

Representation

Amicus

A Win for Liberty

Case History

Congress passed the Clean Air Act — 42 U.S.C. § 7401 et. seq. — to protect the nation’s air resources and promote public health and welfare.  The Act attempts to do so in two ways.  It implements target-based strategies that direct emission reductions to a specific amount or threshold; and it improves controls and processes based on what can be achieved at individual sources using available technology. 

In 1970, Congress added Section 111, which directs the EPA to regulate new and existing stationary sources of air pollutants.  Section 111 follows the second pollution-control approach.  It calls for the Environmental Protection Agency to implement standards based on an “achievable” degree of emission limitation after applying an “adequately demonstrated” system of emission reduction. 

One part of that section—Section 111(d)—specifically covers existing sources.  And since its passage, the EPA has used that subsection fewer than 10 times. In 2015, however, the EPA invoked Section 111(d) to implement then-President Barack Obama’s “Clean Power Plan” (or “CPP”), a wide-ranging effort to mandate a complete overhaul of national electricity generation by way of new regulations on coal- and natural-gas-fired power plants.  In adopting the CPP, EPA sought to exercise significant power far beyond what it had before.  The regulations would have reshaped the nation’s electricity grids and permitted the EPA to unilaterally decarbonize virtually any sector of the economy, all while imagining few meaningful limits on the agency. 

Various states and private parties immediately challenged the CPP in court, and the Supreme Court stayed the plan. After the Supreme Court stay, the Trump Administration EPA repealed it. The D.C. Circuit overturned the repeal, holding that the obscure and little-used statutory provision underlying the Clean Power Plan imposes essentially “no limits” on EPA’s authority to restructure entire sectors of the economy so as to reduce emissions.

We’re urging the Supreme Court to clarify and settle important questions concerning EPA’s authority under the Clean Air Act, agency authority to make decisions of vast economic and political significance unaddressed by statute (i.e., the “major questions” doctrine), agency authority to intrude on areas traditionally regulated by the States, and Congress’s authority to delegate power to agencies to make major policy decisions.

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