EPA’s War on American Industry

It is difficult to imagine a clearer violation of the non-delegation doctrine and separation of powers under our Constitution than the Tailoring Rule. Congress cannot delegate legislative authority to the executive branch. Yet by rewriting the Clean Air Act to say whatever it wants, EPA is brazenly seizing that power from Congress. If the Tailoring Rule is allowed to become precedent, any federal agency that wants to rewrite its enabling statute need only adopt a regulation that would have absurd results, and then it can rewrite the statute to say whatever it likes. 

EPA is also trampling on the constitutional prerogatives of the states. The requirement that states revise their laws and regulations to take account not only of the new pollutants, but also to “automatically update” for all future pollutants designated by EPA, is an unconstitutional commandeering of the states. The Supreme Court ruled in U.S. v. Printz (1997) that “the Federal Government may not compel the State to implement, by legislation or executive action, federal regulatory programs.” The Court noted that it “never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” Yet that is in effect what EPA did when it required states to change their laws in a matter of weeks if they wanted to avoid a construction moratorium on industrial facilities.  The Supreme Court has held that when the federal government induces State action under threat of some economic penalty, “pressure turns into compulsion.” 

States are challenging EPA actions on these and other grounds, but the prospects for these lawsuits remain grim. Ever since caving in to Franklin Roosevelt’s New Deal programs, the federal courts have become largely rubber-stamps for every expansion of federal power, however clearly unconstitutional. Indeed, ever since the Warren Court started “finding” all manner of rights in the Constitution, the federal courts have been perhaps even more guilty than federal agencies of violating separation-of-powers by legislating. 

The EPA has encountered significant opposition even among Democrats, nearly a dozen of whom are on the record against regulating greenhouse gases. We are close to the votes needed for the McConnell amendment to make it into a small business bill that the president would almost certainly have to sign. One senior staffer tells me that Democratic senators Sherrod Brown of Ohio, Claire McCaskill of Missouri, Tim Johnson of South Dakota, and Ben Nelson of Nebraska will be the key votes.  

The EPA has established the framework for subjecting the whole economy to draconian regulation.At stake are the prerogatives of Congress and of the states under our Constitution – as well as the nation’s economic well-being.  

Mario Loyola, former counsel to the U.S. Senate Republican Policy Committee, is an analyst for energy and environmental regulation at the Texas Public Policy Foundation, where he is director of the Center for Tenth Amendment Studies.