Some Federal Agencies Recognize No Authority Above Them
Steve Dittmer | AFF Sentinel
Colorado Springs, CO
Originally sent to subscribers 05/19/24
In our last column, we discussed the bureaucratic labyrinth the EPA had concocted “reforming” infrastructure permitting, rigged so that only “green” projects would be approved and fossil fuel projects would not.
We promised to look at how the EPA is trying to get around the Supreme Court’s ruling in West Virginia that Congress had not given the agency power to mandate how Americans were to get their energy.
This administration -- bragged upon explicitly by President Biden himself -- has adopted a damn-the-Supreme Court-full-speed-ahead approach, from student loan “forgiveness” to tailpipe standards, to mileage standards to power plants. As we wrote last time, agencies full of lawyers are not worried about lawsuits. “So, sue me” is not just an agency motto, a strategic approach, it is what keeps those lawyers in power and busy plying their trade. It creates work for them.
So the EPA has finalized a “suite of rules” to force coal-fired power plants to shut down prematurely, in order to hurry their climate goals. Never mind not having the authority, much less the practicality, technology or cost/benefit calculations.
But there is some good news, although it comes under the category of delayed gratification. Kind of like the “legal” cases against Trump, it’s not the initial jump but the near certainty that the case will be overturned under more rational applications of the law. But while Trump’s problems may be rendered mute by the voting public this fall, our power plant problems will take years of litigation, with irreversible damage.
Not only will the West Virginia precedents work against the EPA in the courts, there are other grounds. In trying to craft a way around the West Virginia ruling that Congress had not given the agency the authority to decide which were permissible sources of energy, the agency pulled a fast one. Having told everyone including Congress before the West Virginia decision that their goal was to reduce greenhouse-gas emissions, EPA Administrator Michael Regan then claimed that the “suite of rules” was designed to shut down politically disfavored coal-fired power plants as “the best tool for reducing greenhouse-gas emissions.”
Chris Horner, attorney and senior fellow at the Competitive Enterprise Institute, holds that our “system of government frowns on regulators’ lying about their reason for doing something.”
In the West Virginia case, the question shifted from whether the agency was lawfully exercising a delegated power to whether Congress had authorized the power at all. The Supreme Court ruled that before employing regulations to compel plant closings, the agency must prove explicit authority and that it had failed to do so, (“EPA’s Climate Deception Won’t Stand in Court,” Wall Street Journal, 05/02/24).
Horner said that some of the new versions of the rule require technology that doesn’t exist. For other rules, the agency lamely claims that subsidies from the Inflation Reduction Act are what are causing plant retirements, not their regulations.
Lawsuits and discovery revealing the behind-the-scenes reasoning in crafting ways to accomplish what the Court held they had no authority to do, should strike down the rules.
The problem is, by the time the cases wend their way through the courts, coal plants will already be shut down or destroyed. Rate payers, both business and residential, will have paid millions in higher rates, replacing generation plants that already existed and constructing new sources that may not be as cost efficient or reliable. Coal industries in states like Wyoming or West Virginia will be severely damaged or destroyed.
A story popped up a few days ago about the planned closing this fall of Britain’s last remaining coal-fired power plant.
Such is the real world effect of illegal rule by government agencies who know better what we need. Horner feels challenging the “suite of rules” in the courts could also yield a Supreme Court examination of the Biden administration’s “whole of government” approach. That approach has mandated, without obvious Constitutional authority, for example, all federal agencies to concoct and implement climate change elements in everything they do. DEI mandates have sailed into agencies and from agencies to business and culture the same way.
Intrinsic in this approach has been a big-government, socialist theme, natural to the bureaucrats who regard as gospel the top down power of government over corporations who must be brought to heel, much less the mere peasants who enable the power and money the bureaucrats wield.
The left constantly harps on “threats to democracy” from conservatives or limited government believers. Yet Horner posits that bureaucrats concocting workarounds to rulings and authority limitations are the real threats to the rule of law and the judiciary.
Such workarounds are how we arrive one day at the demise of an industry, the disappearance of once taken for granted tools like light bulbs or gasoline engines, wolves or grizzlies in our back pasture and ask, “What happened?”
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