Blame Bush for Massachusetts v. EPA?
Mark Moller
Senior Fellow, Cato Institute
Jonathan has asked, elsewhere, whether the Court’s decision in Massachusetts v. EPA is a problem of the EPA’s own devising. I wonder, though, whether it is also a problem of President Bush’s devising. Is it possible to read the decision as a collateral casualty of the President’s aggressive and unrelenting efforts to bolster the power of the Office of the President?
There are a couple of hints that this is the case. One hint is the striking degree to which the EPA relied on conclusory presidential determinations, rather than independent evidence, to support its decision not to regulate. Those included:
1. A presidential determination about the “centrality” of “reduc[ing] key uncertainties that exist in our understanding of global climate change.”
2. A presidential determination that “[a]ddressing global climate change will require a sustained effort, over many generations.”
3. A presidential determination that it is more cost-effective to pursue GHG reduction by improving fuel economy standards.
Each of these determinations went to the heart of findings on endangerment, timing, and feasibility/cost of implementation that the agency must consider when deciding the advisability and content of a rulemaking under section 202 of the Clean Air Act. By rejecting the sufficiency those determinations, and requiring an independent factual record before upholding the EPA’s (in)action, the Court signals profound suspicion of the President’s political influence over “expert” agencies’ regulatory policy.
Hint two is that the majority went out of its way to link the decision to the larger debate over executive power–emphasizing that while “the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws,” a pointed jab at the President’s claims of inherent power to ignore Congress in other areas.
Hint three: this reading helps to harmonize the outcome in this case and that in last term’s Gonzales v. Oregon. In Gonzales, the Court was quick to read a less-than-clear federal statute—the Controlled Substances Act—to preclude executive authority over one contested policy field (assisted suicide). In Mass v. EPA, by contrast, the Court reads another less-than-clear statute—the Clean Air Act—to delegate authority to the executive branch over an equally contested field, global warming.
However, viewed through an executive power lens, the decision in Massachusetts v. EPA and that in Gonzales v. Oregon are of a piece: in both cases, the Court has stepped in to squelch the President’s political control over agency regulatory choices. In Oregon, it did so by squelching the AG’s influence over federal medical policy. As commentators suggested at the time, the Court’s decision seemed to reflect concerns that the White House, acting through the AG, was politicizing regulatory decisions better left to federal agencies with medical “expertise,” like the FDA. In Massachusetts, the Court also squelches the President’s authority over agency regulatory policy–here, by adopting what appears to be a “hard look” approach to review of EPA inaction, under which the EPA, if it wants to shy away from aggressive regulation going forward, must build a detailed, independent factual record that supports the rationality of its judgments—one that stands on its own rather than on the force of conclusory White House directives.
The upshot: Mass. v. EPA is more evidence that a majority on the Court deeply distrusts President Bush and views agency policies that bear his fingerprints with a jaundiced eye. If that’s right, then this case may offer more evidence for the thesis that the Bush administration’s tin-eared aggressiveness on the issue of the unitary executive has actually eroded the standing and power of the executive before the Court—not just on national security fronts but, quite possibly, across a far broader field of regulatory initiatives.
This was posted elsewhere and I think apropos..
Perhaps looking at this from a different angle will help. Why not view this from practical effect.
Simon cites Hamden above noting something of a parallel here and there. And what is this parallel that Mass and Hamden have in common, again from a practical effect. So here we have Hamden addressing an act that, in the slice of a knife, denies access to the courts for a particular group, regardless of their current status within the court system. Mass, although regulatory based and not the subject on legislation, has a similar “freezing” effect as the EPA instead of deciding on the merits, merely refuses to act, either way. Hamden reduces the courts to a reading and dismissal function. Mass/EPA dismisses by non-action.
From a practical and business perspective the effect created by the EPA is the same as a court that claims no jurisdiction by result of legislative fiat. So what is the “average joe” to do? Where does he seek redress..be he a “state” or a detainee? It has been opined on various blogs that the remedy in Mass v. EPA was the election of a new President who would thus effect a change of course at the EPA. Certainly a new legislative branch would or could pass repeal legislation and rid us of the Detainee Treatment Act. But that route rids the courts of any co-equal role and the commonality between Hamden and Mass is purely that. The role of the Court.
By an executive direction (so it appears) the EPA simply refused to consider an issue. It is, however, the only regulatory agency with standing to consider the issue and in refussing it is much like a court that is stripped of its powers to consider or be involved by legislation, again directed by the Executive.
What the court dealt with in Mass is standing AND responsibilty..that the Court looked at the executive and legislative and said you have formed an unholy alliance that strips both us and the regulatory agencies - both charged with recourse for a particular or very broad group of addressees, of our ability to function in our normal way.
If you look at it that way, these two decisions are perfectly reasonable reactions to overreach..and as the law basis has to be strained a bit to justify the decisions (hence the dissent in Mass v. EPA), it demonstrates that a certain collection of justices look at an issue before them and say “this is crazy….” and find a way.
Actually I think it is refreshing that we average Joe Citizens can get something in there and get some action.
-Harold D. House
Comment by harold d. house — April 10, 2007 @ 9:05 pm