Bench Memos

Today’s Argument in Chamber of Commerce v. EPA

This morning, the Supreme Court will hold oral arguments in Chamber of Commerce v. EPA, which is yet another case of an agency interpreting its authority so aggressively as to abandon the actual language passed by Congress. In this case, the Environmental Protection Agency attempted to effectively alter the language of the Clean Air Act in order to accommodate its regulation of greenhouse gases (like carbon dioxide) as pollutants.

After the Supreme Court held in Massachusetts v. EPA (2007) that EPA had to conduct rulemaking regarding the regulation of greenhouse gases issued by motor vehicles, the EPA issued regulations interpreting Massachusetts to extend this requirement to other sections of the statute. In particular, the EPA applied the definition of greenhouse gases from mobile sources to sections of the act dealing with different types of stationary sources. Those sections have numerical pollution thresholds written into the law itself, which become problematic if applied to greenhouse gases like carbon dioxide that differ from traditional pollutants because they are necessarily present in huge quantities in the normal air we breathe.  

Applying EPA’s suggested interpretation with these numerical thresholds would expand the covered sources of carbon dioxide by orders of magnitude: from tens of thousands of sources to millions of sources and from covering things like major power plants and steel mills to implicating small businesses and private homes. As a result, EPA estimated that extending the law’s reach to such a degree could create delays of up to ten years in issuing permits. This, EPA recognized, would be an absurd reading of the statute.

But instead of avoiding the absurdity by choosing a reasonable interpretation — by taking the inability to work CO2 into the statutory framework as evidence that Congress didn’t intend it to be covered — EPA blamed the Supreme Court’s decision in Massachusetts v. EPA, claiming that it had no choice in the matter. In its effort to scapegoat Justice Stevens, who wrote the majority opinion in Massachusetts v. EPA, the agency reads the case as aggressively as it does the statute. As our amicus brief argues, the EPA’s aggressive reading of Massachusetts relies on dicta taken out of context, whereas the holding only required EPA to conduct a rulemaking that is grounded in the statute.

It would be bad enough if the EPA had just left us with its absurd interpretation and let the natural consequences of its hyperregulation play out. Instead, the EPA decided to rewrite the statute by changing the very numbers in its text. Not only does the Constitution forbid agencies from amending statutes like this, ad hoc amendments also create crippling uncertainty in the law. After all, if the EPA has the authority to alter the statute in this way, there is nothing to stop it from changing the thresholds again sometime in the future.

This discretion-maximizing approach to government is becoming the modus operandi of the current administration, most notably played out in the context of Obamacare, where government agencies have flatly refused to enforce the law.

Monday’s argument will be important for the continued viability of the Constitution’s separation of powers. The Court should put a stop to this administration’s thirst for unlimited discretion and the asserted power to ignore the law. If you’d like to learn more about this case, you can read our amicus brief here


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