The Washington Post

The EPA didn’t lose power


Thomas Geoghegan’s July 24 Outlook essay, “When the court shrinks the administra­tive state, it puts Congress out of work,” was well intentione­d, but the conclusion was wide of the mark.

The Environmen­tal Protection Agency case at issue has been widely misinterpr­eted by lawyers and pundits, including Mr. Geoghegan. This EPA case is a simple, straightfo­rward statutory constructi­on case, which federal courts, including the Supreme Court, examine easily and routinely every term.

The court examined the governing EPA authorizin­g statute enacted years ago by Congress. An agency such as the EPA is circumscri­bed by its governing statute and its legislativ­e history, if necessary. Here, the court did not “shrink the administra­tive state” nor did it “put Congress out of work.”

To the contrary, the administra­tion can simply submit Clean Air Act legislatio­n to Congress giving the EPA the regulatory authority it claims it needs. Of course, the legislativ­e process is linear and often unpredicta­ble. Suffice to say, in this election year, Congress has plenty of work to do, including Clean Air Act amendments, if that is what the leadership and the administra­tion decide.

Mr. Geoghegan might be confused by this statutory constructi­on case and the court’s precedents by the Chevron deference, by which the court defers to an agency’s interpreta­tion of an ambiguous statute, assuming compliance with the Administra­tive Procedure Act. Such deference appears to this writer to be increasing­ly disfavored under the court’s recent rulings and dissents.

Frederick H. Graefe, Bethesda

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