EPA’s Power Play And The Constitution

December 17, 2009

In the midst of the “climategate” controversy and on the eve of the U.N. Climate Change Summit ,the U.S. Environmental Protection Agency formally declared last week that greenhouse gases “threaten the public health and welfare of the American people.”

This statement is significant because of the 2007 Supreme Court decision in Massachusetts v. EPA, which held that the Clean Air Act granted the EPA the authority to regulate CO2(carbon dioxide) emissions. Carbon Dioxide is one of the greenhouse gases covered by last week’s EPA determination. The EPA may now regulate greenhouse gas emissions if Congress chooses not to act soon.

There has been a great deal of controversy over what is seen as the EPA’s usurpation of power from Congress, which is constitutionally given the sole power to enact laws.

Despite this sentiment, the EPA appears to be on solid constitutional ground here.  Although Congress supposedly cannot delegate legislative authority to other branches of the government, the Supreme Court will allow it so long as Congress provides an “intelligible principle ” which governs the agency’s authority.  As a practical matter, the Supreme Court allows this Congressional delegation freely.  Hence, Congress and the Supreme Court have granted a great deal of independent power to Executive Branch agencies, such as the IRS, the FDA, the Federal Trade Commission, the FCC, and all of the other agencies making up the “fourth branch” of government.

The EPA finding (and especially the timing of the announcement) is seen as a power play to force Congress to enact greenhouse gas legislation, such as a cap and trade bill.  It seems to me that it might also provide cover for Congress, as a drawn out battle for a controversial cap and trade bill might never succeed, and if it does, democrats may pay a high political price at the polls come November.

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