Sweep­ing cli­mate man­dates re­quire Con­gress

Albuquerque Journal - - OPINION - RICH LOWRY Rich Lowry can be reached via e-mail: com­ments. lowry@na­tion­al­re­view.com. (c) 2017 by King Fea­tures Syn­di­cate.

One by one, the ar­ti­facts of Pres­i­dent Barack Obama’s rule by ad­min­is­tra­tive fiat are tum­bling.

The lat­est is his sig­na­ture Clean Power Plan that En­vi­ron­men­tal Pro­tec­tion Agency ad­min­is­tra­tor Scott Pruitt says he will be­gin the ar­du­ous process of un­wind­ing.

The first year of Don­ald Trump’s pres­i­dency has been char­ac­ter­ized — de­spite his bump­tious­ness — not by ex­ec­u­tive over­reach, but ex­ec­u­tive re­trench­ment. Trump the pop­ulist has op­er­ated within con­sti­tu­tional lines bet­ter than his tech­no­cratic pre­de­ces­sor, who used ten­den­tious read­ings of the law and sweep­ing bu­reau­cratic ac­tions to im­pose his poli­cies on im­mi­gra­tion, health care, col­lege cam­puses and the en­vi­ron­ment.

The Clean Power Plan, which sought to re­duce U.S. car­bon emis­sions by 32 per­cent be­low 2005 lev­els by 2030, was govern­ment by the ad­min­is­tra­tive state on a scale that has never been at­tempted be­fore. The EPA took a du­bi­ous read­ing of a por­tion of the Clean Air Act — Sec­tion 111, which ar­guably pre­vented the EPA from tak­ing this ac­tion rather than em­pow­ered it to do so — and used it to man­date that the states adopt far-reach­ing plans to re­duce car­bon emis­sions, un­der threat of the loss of fed­eral high­way funds.

The le­gal foun­da­tion of the Clean Power Plan was so rick­ety that the Supreme Court took the ex­tra­or­di­nary step of block­ing its im­ple­men­ta­tion pend­ing all the law­suits against it.

The pre­sump­tion of the plan was jaw­drop­ping. The EPA usu­ally tar­gets pol­lu­tants; car­bon diox­ide isn’t one — although the Supreme Court er­ro­neously said that it meets the def­i­ni­tion in the case of Mas­sachusetts vs. EPA. The EPA has al­ways reg­u­lated spe­cific power plants; in this scheme, it went “out­side the fence” to man­date broader ac­tions by the states, e.g., the adop­tion of quo­tas for re­new­able en­ergy. The EPA once con­sid­ered its man­date to be pro­tect­ing clear air and water for Amer­i­cans; with the Clean Power Plan, it sought to ad­just the global ther­mo­stat for the good of all of hu­man­ity.

The last gets to the ab­sur­dity of the Clean Power Plan on its own terms — it did vir­tu­ally noth­ing to af­fect global warm­ing. As Ben­jamin Zy­cher of the Amer­i­can En­ter­prise In­sti­tute points out, the Obama ad­min­is­tra­tion’s Cli­mate Ac­tion Plan, which in­cludes the Clean Power Plan, would re­duce the global tem­per­a­ture by 15 one-thou­sands of a de­gree by 2100. The point wasn’t to fight cli­mate change per se, but to sig­nal our cli­mate virtue in the hopes of cat­alyz­ing ac­tion by other na­tions and, not in­ci­den­tally, hob­ble the U.S. coal in­dus­try in fa­vor of more po­lit­i­cally palat­able sources of en­ergy, namely wind and so­lar.

What­ever the mer­its of this agenda, as a first or­der mat­ter, it must be en­acted law­fully and not in­sti­tuted by strained le­gal in­ter­pre­ta­tions alone. In con­gres­sional tes­ti­mony ar­gu­ing that the Clean Power Plan is un­con­sti­tu­tional, lib­eral law pro­fes­sor Lau­rence Tribe noted that the Supreme Court has said that Con­gress doesn’t “hide ele­phants in mouse holes.”

If Con­gress had au­tho­rized the EPA to re­make the na­tion’s en­ergy econ­omy, we would pre­sum­ably be aware of it and re­call an im­pas­sioned con­gres­sional de­bate over this rad­i­cal and costly change. In fact, the op­po­site is true. Con­gress has de­clined to en­act laws lim­it­ing car­bon emis­sions, in­clud­ing when Democrats held both houses of Con­gress un­der Pres­i­dent Obama.

If the fu­ture of the planet is at stake and it re­quires a gen­er­a­tional ef­fort to save it, surely it is not too much to ask that a statute or two be en­acted by Con­gress ex­plic­itly com­mit­ting the coun­try to the task. Yes, this re­quires win­ning elec­tions and gain­ing demo­cratic as­sent, but such are the chal­lenges of liv­ing in a repub­lic and a na­tion of laws.

In his im­pa­tience with Con­gress and his ad­min­is­tra­tive im­pe­ri­ous­ness, Pres­i­dent Obama dis­pensed with all that. What he im­posed uni­lat­er­ally is sub­ject to uni­lat­eral re­ver­sal. The roll­back will en­counter its own reg­u­la­tory and le­gal ob­sta­cles, but can be achieved more read­ily than if Obama had been able or both­ered to write a swath of his le­gacy into law.

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