On Tuesday, President Donald Trump signed an executive order nullifying the Obama administration’s Clean Power Plan, a piece of green-fantasy regulation that was probably illegal and certainly unwise. Democrats are howling and no doubt will sue. Live by executive action, die by executive action: If the Democrats want the Clean Power Plan to be enshrined in law, then they should consider passing a law, or at least trying to. As someone once said, “elections have consequences.”
The Clean Power Plan is the result of a cascade of legal and policy errors, one in which the Supreme Court itself is culpable.
Carbon dioxide is a product of the burning of fossil fuels and other industrial processes, and it is a contributor to what we used to call “global warming” and what we now are obliged to call “climate change.” What should be done about that is a political question, properly speaking, inasmuch as it involves complex economic and environmental tradeoffs that should be negotiated among people who are subject to democratic accountability. Carbon dioxide was never listed as a source of air pollution under the Clean Air Act, which is designed to deal with pollution per se, which is a local phenomenon, as opposed to climate change, which is, by definition, a global phenomenon.
The Clean Air Act could be amended in Congress, but, instead, a coalition of largely Democratic states went to court to force the Environmental Protection Agency to classify carbon dioxide as a source of air pollution under the Clean Air Act, which would oblige the EPA to come up with a plan for regulating it. The case was Massachusetts v. EPA (2007), and the Supreme Court decided it wrongly, issuing a 5–4 decision that obliged the EPA to treat carbon dioxide as a source of air pollution under the assumption that climate change “may reasonably be anticipated to endanger public health or welfare.” Under that standard, we might well regulate Boko Haram as a source of air pollution.
The ruling came in spite of the fact that the EPA itself had previously determined that it had no authority to issue carbon dioxide regulations under the Clean Air Act and a dozen other narrower legal considerations. Justice Antonin Scalia’s dissent is worth taking the time to read.
With the EPA having been given a brief to regulate carbon dioxide — an outcome the people who would come to staff the Obama administration very much welcomed — the EPA drew up a plan that would essentially reorganize the entire power-generation industry in the United States, forcing out coal and petroleum and mandating the use of so-called renewables. The plan was so far-reaching in its ambitions that half of the nation’s attorneys general joined litigation against it, insisting that it exceeded the agency’s remit, and the Supreme Court appeared to be sympathetic to their case, suspending enforcement of the new EPA rules until the case could be heard and decided.
Scott Pruitt, the new administrator of the EPA, was one of those attorneys general. And he repeatedly has made it clear that one of his priorities at the EPA will be to ensure that the agency abides by the rule of law rather than engage in regulatory adventuring with dubious authority. “Does EPA even possess the tools, under the Clean Air Act, to address this?” he asks. “It’s a fair question to ask if we do, or whether there in fact needs to be a congressional response to the climate issue.”
Here Pruitt is stating something that is, strangely, as controversial as it is obvious: If we are to make climate change a priority of the U.S. government, then Congress needs to pass a law establishing what that means and how we are to proceed. This is a question for elected officials, not for cloistered, unaccountable regulators. Indeed, even those who prefer a more aggressive approach to climate change concede that the Clean Air Act is hardly a sufficient legislative basis for national action. The EPA itself believes this, and testified to that fact in a subsequent Supreme Court case, Utility Air Regulatory Group v. EPA (2014).
The Democrats already have indicated that they will go to court and argue that President Trump does not have the executive authority to reverse a program instituted on the executive authority of the previous administration. Their argument is unpersuasive. There are of course limits to what the president may do domestically (thanks for that, Mr. Madison). But forging the enforcement of a regulatory scheme hatched by the prior administration — one that never has been enforced and that the current administration and half the states plausibly believe to be illegal — falls well within the proper discretion of the executive.
We are not convinced that immediate and radical action on climate change is either necessary or prudent. But if there is to be such action, it should come from an elected Congress, an elected president, or both. It is not as though Democrats have not run on the issue — they simply have been unsuccessful doing so. They ought to heed Barack Obama’s advice: “Win an election.”
Donald Trump won the last one. And on the matter of EPA overreach, he is doing the lawful thing and the right thing.