OPINION:
On Thursday, the Environmental Protection Agency proposed a new round of strictures for power plants that would require them to reduce carbon dioxide emissions. In most cases, the rules would require power plant operators to either capture the CO2 and store it underground, which is possible but prohibitively expensive and not remotely proven at scale, or to burn hydrogen rather than natural gas.
At the moment, hydrogen is about 10 times as expensive as natural gas, even if you could build a pipeline to get it to a power plant. So, the practical effect of the regulation would be to increase the cost of electricity, increase the number of blackouts, or (more probably) both.
The good news is that neither the Clean Air Act nor any another federal statute empowers the EPA to require either carbon capture and storage or the use of hydrogen.
The other bit of good news is that the Supreme Court recently agreed to hear Loper Bright Enterprises v. Raimondo, which is a case about regulatory overreach involving the National Marine Fisheries Service. The court most likely agreed to hear it so the justices could finally and definitively rule on who gets to determine the bounds of an agency’s statutory authority.
It’s about time.
Under the approach laid out almost 40 years ago in Chevron v. EPA, federal courts have given agencies wide latitude in interpreting the statutes they enforce. That deference to the agencies has been steadily chipped away in the last decade, and the decision in Loper may finally reverse Chevron and rightfully establish courts as the principal arbiters of what statutes allow.
That would be welcome. It is no accident that the last 40 years have seen an expansion and acceleration of the administrative state, as agencies have almost always interpreted statutes as broadly as possible. Guided by the misguided Chevron decision, courts have tolerated ever greater appropriation of powers by the agencies.
The timing is, oddly enough, probably advantageous to the Biden administration, which seems to be counting on the Supreme Court to strike down these more aggressive proposed regulatory actions. For instance, it seems unlikely that the White House really wants to raise electricity prices in the middle of what would be its second term (when the just-proposed power plant rule would become operational). All they really want is a nice campaign event next summer when they can announce the final rule, before the courts vitiate it.
Same with the proposed student loan bailout. The administration really wanted the press release announcing the bailout more than they wanted the actual policy; it energizes their base. It is no doubt counting on the courts to find it unlawful. There are other examples.
Unfortunately for White House officials, the reality is going to be messier than they expect. If what remains of Chevron deference is hollowed out by the coming ruling in Loper, it will destroy the administration’s regulatory agenda. Moreover, once Chevron becomes a dead letter, long-settled rules may be revisited.
That is all good and healthy for the American republic. Congress should make the laws, preferably with specificity and clarity. Agencies should enforce the laws, not expand them. To borrow from Chief Justice Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.”
Restoration of that simple arrangement, which served the nation well until Chevron v. EPA upended it, will serve to improve government, instill confidence in its decisions, and reduce friction between it and the citizenry.
Please read our comment policy before commenting.