Hamilton Legal An Abuse of Environmental Power

Sara Sirota

In an effort to protect public health from environmental hazards, former President Richard Nixon initiated the U.S. Environmental Protection Agency (EPA) in 1970. Since 2007, it has appeared before the Supreme Court three times to determine the extent of its powers to regulate greenhouse gas emissions, which have increasingly become a concern to health specialists. On February 24, the Supreme Court heard the third case, Utility Air Regulatory Group v. EPA, in which industry groups claimed the latter abused its executive authority by raising the greenhouse gas emissions threshold for stationary sources that requires EPA enforcement under the Clean Air Act.

The threshold has been 100 or 250 tons per year, which makes sense for traditional air pollutants. However, after the EPA began regulating greenhouse gases in 2011, such a low threshold would mean that thousands of small facilities would be subject to federal enforcement due to carbon dioxide emissions. In order to focus solely on the large polluters, the EPA raised the threshold to 75,000 to 100,000 tons per year.

However, the Clean Air Act does not include such high numbers. The EPA claims that since Congress passed the Clean Air Act amendments pertaining to pollutants in the 1970s, it should be able to adjust the threshold for federal enforcement based on the more recent concern for greenhouse gases. According to Reorganization Plan No. 3 of 1970, which created the EPA, the agency’s functions include establishing environmental standards, conducting research and recommending policies. Does this mean it can change the law though?

The plaintiffs in the case say no, that the EPA is abusing its involvement with the law, a common source of tension between the executive and legislative powers. Thus far, the Supreme Court justices are divided, although their ultimate decision will come in June. Until then, we can wonder: does the EPA have the power to increase threshold standards for stationary sources as a means of regulating greenhouse gas emissions to protect public health? Under the law, which the Supreme Court must uphold, it does not.

In 2007, the Supreme Court declared that the EPA could regulate greenhouse gases under the Clean Air Act if it determined they were harmful to public health. Beforehand, the EPA did not consider them to be air pollutants; therefore, they were not subject to regulation. The case in 2007, Massachusetts v. EPA, specifically concerned emissions for vehicle tailpipes, not stationary sources. Thus, the EPA is abusing its power to regulate greenhouse gas emissions from such sources. It should have sought out the approval of Congress, the legislative body that actually creates the law under Article I of the Constitution.

Along the same lines, the EPA is abusing its power by raising the threshold at which the law requires federal enforcement of polluters. Yes, maintaining the threshold at 100 or 250 tons per year would require regulation of thousands of unnecessary facilities; that is indisputable. However, unilaterally changing the threshold without Congressional approval is once again an exploitation of power.

Many people complain that following the constitutional law of waiting for Congress to approve such a change to the law is inefficient. However, this reasoning is not a legitimate excuse for the EPA, or any executive agency, to circumvent the law and create its own rules. Such actions violate separation of powers and congressional oversight. In order for Congress to continue to act as a legitimate legislative body, the executive branch must respect its powers.

At the core of the dilemma is finding efficient and relatively cheap ways to regulate greenhouse gas emissions. Now widely accepted as an air polluter, much focus goes into reducing greenhouse gases. With global warming and its threat to public health at the center of scientific research today, the government must take quick and effective action. However, it must always uphold the law in its pursuits.

Contact Sara Sirota at [email protected].