McClaughry: EPA case a victory for the rule of law — will Biden now declare a ‘climate emergency’?

Wikimedia Commons/Gillfoto

President Biden, urged on by Sen. Bernie Sanders, is reported to be fashioning a declaration of a “national climate emergency” that he hopes will authorize him to do whatever he thinks is needed to be done to fend off a climate Armageddon. The Supreme Court will probably not be persuaded that such a desperate use of unaccountable executive power is constitutional.

By John McClaughry

In its final week in session, the U.S. Supreme Court handed down four opinions that brought the wrath of the left down upon the six justices in the majority. One expanded parental choice in education to sectarian schools, one ended New York’s arbitrary regulation on carrying firearms for self-defense, and one held that there is no constitutional right to abortion.

The fourth one drew hostile fire from the anti-climate change movement: West Virginia v. EPA. Among the Vermont complainers was Roxanne Vaught, executive director of Vermonters Businesses for Social Responsibility. Wrote she, the Court “limited the EPA’s ability to reduce climate pollution from power plants, severely damaging our ability to tackle our escalating climate crisis.”

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

The co-chairs of the Vermont legislature’s Climate Caucus, Democratic Rep. Sarah Copeland Hanzas and Progressive Sen. Chris Pearson, let fly with “last week the Supreme Court sided with big polluters, limiting the EPA from setting the kind of highly effective emissions standards we need.”

Yes, the case dealt with Environmental Protection Agency regulation of power plants, but that only happened to be the controversy that brought into focus a much broader issue: what authority do the regulatory agencies have to order people to do what the regulators want, or be punished? The answer is the authority of the Constitution, and laws duly enacted by Congress pursuant to the Constitution.

Few disagree with that. The great difference of opinion comes when Congress passes a sweeping but vague law and the regulators eagerly fill in the details. At what point should the regulators be made to say, “whoa! The authority Congress gave us doesn’t go that far.”

Faced with numerous cases of regulatory overreach, the Supreme Court in 1984 established the Chevron doctrine. It required the Court to defer to the presumably expert regulators who could produce a “reasonable” interpretation of ambiguous laws. This lightened the Court’s case load, but destroyed political accountability for actions by regulators at agencies such as EPA, OSHA, SEC, FTC, and CDC.

The West Virginia case originated with President Obama’s failure to get Congress to enact his Clean Power Plan. With the pressing need to be hailed as the global champion of the war against “climate change”, and a battle cry of “We Can’t Wait!”, Obama decreed rules that in effect directed all power plants to switch from coal and natural gas fuel to generation provided by renewables. After a tortuous trip through the courts involving three Presidents, the issue of whether EPA had sufficient Congressional authority to decree such a “generational transformation” came before a Court unsympathetic to a runaway regulatory bureaucracy.

The government admitted that the required transformation would “impose billions in compliance costs, raise retail electricity prices, require the retirement of dozens of coal plants and eliminate tens of thousands of jobs”. The Court, rightly, deemed the CPP to be a “major question.” As such, it had to be founded on “clear Congressional authorization for the authority [the EPA] claims.”

In plain English, if Congress decides that such a program should be carried out, Congress has to make its authorization explicit and clear. Members of Congress and the President who signs the bill have to go on the record, and face the consequences from the citizenry.

That accountability is not a popular concept on Capitol Hill, or for that matter in Montpelier, where the Vermont Climate Council promotes sweeping regulation by agency bureaucrats, that no legislator will ever have to vote on.

Example: the Clean Heat Standard, cleverly designed to pay for millions of dollars worth of favored energy improvements (weatherization, heat pumps etc.) with money taken from heating fuel consumers, built into the higher price of that product.

Liberal Justice Elena Kagan delivered a dissent based on the horrors of climate change; “modern science is unequivocal”, rising oceans swamping coastlines, 4.6 million extra heat deaths per year etc. She argued for immediate regulatory action no matter what the cost, and that down in the bowels of Sec. 111 of the Clean Air Act some rationale can be found to support the Clean Power Plan, with no further action by Congress. Not persuasive.

President Biden, urged on by Sen. Bernie Sanders, is reported to be fashioning a declaration of a “national climate emergency,” that he hopes will authorize him to do whatever he thinks is needed to be done to fend off a climate Armageddon. The Supreme Court will probably not be persuaded that such a desperate use of unaccountable executive power is constitutional.

David Rifkin, counsel for the 27 states and plaintiff industries in the case, said following the Court’s opinion, “The power of the administrative state is certain to recede, bolstering democratic accountability, economic growth, and liberty.” That should be a happy outcome for anyone defending democracy and the rule of law.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Wikimedia Commons/Gillfoto and John McClaughry
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9 thoughts on “McClaughry: EPA case a victory for the rule of law — will Biden now declare a ‘climate emergency’?

  1. Perhaps this video explains things a bit better…

    https://choiceclips.whatfinger.com/2022/07/25/dark-brandon-top-10-memes-watch-maga/

    the fact that someone would support some, the leader of Vermont who voted for build back better……which is subtitled by their own words, “you will own nothing and be happy” says it all. So who does own it then? Nobody asks that question do they?

    They want us to be slaves to the system…just like Vermont “affordable housing” a system fostered by the communist in charge Bernie sanders….state owned housing…….a boondoggle of corrupting and nepotism…..

    enriching themselves while keeping Vermonters Broke and Poor, trapped….

    • KUDOS! Everything by Tony Heller should be mandatory reading/watching by all at TNR….The VT legislature should be bound to their chairs & gagged while they are forced to watch a few hours of Mr. Hellers brilliant research, and easy understand videos, that show the truth…not lies, propaganda and indoctrinations 🙂

  2. President Biden, urged on by Sen. Bernie Sanders, is reported to be fashioning a declaration
    of a “national climate emergency ”

    Vermont should be proud of their Barking Buffoon Sanders and his knowledge about anything
    and now it’s “Climate Armageddon ” and feckless Joe gets confused on a stage with a podium
    with teleprompters, you can’t make this stuff up, he is just a puppet, but who’s pulling his strings

    So who’s to benefit from ” follow the money ” all this sky is falling nonsense, we know the world
    traveler Al Gore really doesn’t believe his own rhetoric ” show pony ” and now Vermont’s very
    own ” Vermont Climate Council ” promotes sweeping regulation by agency bureaucrats, that no
    ” legislator ” will ever have to vote on, but it will be costing you big time…………..

    Wake up people, they don’t have your best interest in mind, it’s all about the agenda !!

  3. Boil it down. SCOTUS never ruled on anything the EPA wanted to do – as either good, or bad. SCOTUS had NO OPINION on the EPA Emission rules. What SCOTUS did do was recognize that it was illegal what Obama was doing. Obama was using “Excutive Branch Orders” as a “Dictat” to force his agenda, nationwide….instead of using the correct way and use the LEGISLATIVE BRANCH. SCOTUS removed the EPA from enforcing their illegal mandates and forced it back to the LAW making body – Congress. Obama and his ilk used illegal Executive Branch Orders, just as a Facist-Totalitarian Gov’t would. That is what SCOTUS rebeled and ruled on….nothing more. There is an Executive, Legislative and a Judicial Branch in our form of Gov’t…..Not Liberal Democrat “Laws By Dictat”.

    • Oh, delicious to add. When AOC first arrived in Washington she ssid that the THREE Branches of the Gov’t were The Senate, the House and The President!….AOC had NO CLUE that it is the Executive, Judicial and Legislative Branches… And SHE IS ELECTED TO CONGRESS!…just like I’d bet that every graduate of “VT Law & Indoctrination School” has no clue either :)…..This is what you get when Liberal Progressive Democrats run things….Lies and Dikats 🙂

      • This is a race to the bottom by ALL the political parties. The leaders of the race are those who bought into the Equal Outcome BS and hired or voted for people like AOC and others who are literally dumb as a box of rocks.

        The US and Vermont are headed away from a constitutional republic and moving hellbent towards a kakistocracy (government by the least qualified).

        Don’t forget to vote…

  4. It isn’t that Sanders is socialist, but that he seems Marxist. Take the power away from the people into the control of bureaucracy.

    • Scott,
      Sanders is a ‘Marxist’, period! Any continued ruse attempting to soft-peddle him as a nuanced ‘Socialist’ – bad as that knowably is (eg.,Venezuela) – is comical ‘disinformation’. Where’s DHS’s ‘Ministry of Truth’ when they actually might be useful?

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