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    Monday, March 04, 2024

    SCOTUS ruling has impact beyond environment

    The Supreme Court's ruling last week that the Environmental Protection Agency lacks broad authority to issue stringent regulations on power plants is about far more than environmental law. It is a blow to the so-called administrative state, which conservatives have been fighting since Franklin D. Roosevelt was president.

    The issue is complex, but can be boiled down to this: conservatives believe that executive departments like EPA have too much authority to enact rules that should be legislated by Congress.

    In a concurring opinion to the majority, Justice Neil M. Gorsuch wrote that agencies cannot “take matters into their own hands” when Congress is slow to enact laws on matters of urgent public importance.

    In a dissent, Justice Elena Kagan maintained that Congress has given EPA, through the Clean Air Act, broad authority to enact specific rules and regulations as the need arises.

    Regardless of where one stands on this issue, there is no arguing that the ruling in West Virginia v. Environmental Protection Agency could have a wide impact.

    Executive agencies issue hundreds of rules a year. The Food and Drug Administration determines drug safety. The Health and Human Services Department regulates Medicare and Medicaid. The Interior Department has jurisdiction over threatened and endangered species, tribal gaming and national parks.

    This rule-making, which requires public notice and comment, touches every aspect of Americans' lives, to what drugs they can purchase over the counter to what fish they can catch in our oceans to what training they need to drive tractor-trailers.

    These rules affect our health and safety. They protect us from untested drugs, keep us safe on our highways and rails, and ensure that the meat and vegetables we buy in the supermarket are safe to consume.

    Some rules react to a public threat, such as when someone laced Tylenol pills with cyanide in 1982. The FDA issued a rule requiring tamper-free packaging.

    Some rulings are controversial, such as the FDA's recent decision to ban Juul e-cigarettes. After the company filed suit, a federal court ruled the vaping product could stay on the market pending further study.

    By limiting carbon emissions, the EPA regulation would have forced the closure of some coal- and gas-fired plants and hastened a move toward nonpolluting fuel sources. The end game is to reduce global warming, with its sea-level rise and weather extremes.

    In other words: The rule is designed to keep us safe.

    If you take the most conservative stance against administrative procedures, we would have no rule making outside of Congressional legislation.

    But Congress is not designed to issue detailed regulations. Even worse, today the House and Senate are so polarized they couldn't pass a bill to license dog catchers, never mind deal with the issues that imperil human health and habitat.

    In a speech at Hillsdale College in 2014, Philip Hamburger of Columbia Law School argued that administrative law is akin to “absolute power practiced by pre-modern kings.” We all know how Americans feel about kings.

    But this isn't about the Spirit of '76. Conservatives like to make the administrative state into a boogieman constraining the lives of everyday, freedom-loving Americans.

    The truth is that their laissez-faire approach would make it more difficult for all of us to live our lives and pursue our happiness.

    Who, for example, would love to see the IRS and the Securities and Exchange Commission defanged?

    For less-restrictive rules on emissions? For lax safety rules at meat processing plants and factories?

    Big Pharma, agribusiness and manufacturers have the most to gain, not individuals. The fewer rules, the less restrained their powers to make money.

    In the past the courts have recognized that some issues are so urgent to the future of the planet that their resolution has to trump legal theorizing. When a magazine claimed First Amendment rights to publish how to make a hydrogen bomb in 1979, a federal judge noted that erring on the side of the First Amendment could lead to “thermonuclear annihilation for us all.”

    It might be nice to imagine a world with no administrative rules and regulations, but with global warming at stake, the consequences of this libertarian approach could be lethal for the planet.

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