How The Left Views Administrative Law: A Highlight From The Federalist Society Convention

You may have seen that the Federalist Society has been holding its annual convention in Washington. I was there on Thursday and Friday. They have recorded all the presentations. If you want to watch some, go to this link and see what interests you.

There was not a lot of moaning about the election results. Rather, the focus was on high-minded issues, mostly of constitutional and administrative law.

I have selected a highlight that you may find interesting. One of the lunchtime panels on Thursday was titled “Render Law Unto Congress and Execution Unto the Executive: The Supreme Court Rebalances Constitutional Power.” Here is the description of the subject of the panel:

The Roberts Court is recasting the administrative state according to its view of the separation of powers. It is giving the President more authority to fire his subordinates and creating a hierarchical executive where the President and his principal officers have more authority over appointments and decision making. It is forcing the legislature to speak clearly when it wants to vest agencies with major powers and expressing interest in reinvigorating limits on some delegations of legislative power. It is strengthening the judiciary’s interpretative role, declining to give as much deference to regulatory interpretations by agencies. Is its view coherent and sound? Should the Court square its vision with a modern government that was formed on different principles? If so, how?

The full video of the panel, 1:23:30 in length, can be found at this link. The panel featured four speakers (Nicholas Parrillo of the Yale Law School, Aditya Bamzai of the Virginia Law School, Thomas Griffith, formerly Judge of the DC Circuit, and Sally Katzen of NYU Law School) describing and debating the merits of recent Supreme Court cases that have articulated something called the Major Questions Doctrine as a limit on administrative agency power to promulgate regulations of sweeping import without clear statutory basis. The most important of the cases under discussion was West Virginia v. EPA, the June 30 Supreme Court decision that held that EPA’s Clean Power Plan — a mechanism to shut down all generation of electricity using fossil fuels — exceeded the agency’s authority under the Clean Air Act.

As is typical on Federalist Society panels, the majority were conservative scholars or judges, who thus were generally supportive of the Court’s approach, although offering a variety of perspectives. However, the fourth panelist, in this case Ms. Katzen of NYU, was a die-hard left-winger. It fell to Ms. Katzen to defend the position that EPA was well within its powers under the CAA to promulgate a regulation that would force the closure of all coal power plants in a short period of time, followed in short order by all natural gas power plants over the next decade or so.

In her opening remarks (beginning about the 31 minute mark of the video at the link) Ms. Katzen described Congress as having become a completely dysfunctional institution that has been paralyzed by partisanship and can barely pass a spending bill to keep the government operating, let alone address any serious policy issue with major legislation. Meanwhile, she noted that since adoption of the Constitution the country had become huge, wealthy, and enormously complex. Thus Congress has seen fit to delegate the problems of dealing with the great complexities to specialists and experts in various fields. But now, said Ms. Katzen, her voice dripping with scorn, the Supreme Court has decreed that only the dysfunctional Congress can address the most critical issues facing us. She was particularly critical of the Court having struck down the Clean Power Plan, which in her view was well within the authority granted to EPA under the CAA, as well as being a subject that could only properly be dealt with by people with the necessary expertise, such as the bureaucrats at EPA.

Before reading on, you might consider whether those arguments appear persuasive to you.

After the panelists’ remarks, there was a period for questions from the audience. I managed to maneuver myself into a position to get to the microphone and ask the first question. I’m going to transcribe my question and Ms. Katzen’s response. This begins at 1:04:24 of the video:

Question: Thank you. My name is Francis Menton. My affiliation is Manhattan Contrarian. That’s my blog; many people here may read it. So out there we have the Clean Air Act, and the Clean Air Act basically gives the EPA the authority to regulate “pollutants.” And then a decade or so ago the EPA decided that carbon dioxide was a pollutant. And I guess this question is mainly for Professor Katzen. So carbon dioxide has been declared a pollutant by the EPA. They’re an “expert.” Does that mean, could the EPA then, on its own authority, say, well, airplanes all generate carbon dioxide, we hereby say they must be all grounded? Oh, and industry must be ended, that generates carbon dioxide. And 80% of our electricity generation is fossil fuel, generates carbon dioxide. And of course all automobiles, so you can’t drive them any more. Can the EPA do that? Or does that go beyond what they’ve been authorized to do? And if it goes beyond, what is the limiting principle? Do you have one, or are you completely fine with that if EPA does that?

Professor Katzen: I’m not sure I completely followed because there’s a lot of distracting noise out there. But the Congress clearly gave the EPA authority to specify those pollutants that are dangerous and should be regulated, and to set limits for them based on that which is necessary to protect the public health, with an adequate margin of safety and all that. There are standards to be applied. They can’t just say “no cars.” I don’t think that would survive any kind of judicial review.

Me: What’s the standard?

Professor Katzen: (Several seconds delay) The standard as set forth in the Clean Air Act is the scientific basis for levels to be set. That’s not — I’m not an environmental lawyer, and maybe there are others here who could provide the exact terminology. But the EPA is not able to and does not do whatever it has a whim to do when it wakes up in the morning. It bases it normally through rule-making through notice and comment, cost/benefit analysis, scientific determinations, that are subject to the critique and then response by the agency. You may not be happy with the answer any more than I was not happy when they stayed the Clean Power Plan in the first place, even though it had not yet gone through the courts. It was an extreme action taken to shut down rule-making in this area. And I thought that was unfortunate that we were never able to develop the kind of record that would enable sensible people to see if the agency was acting within its authority as granted by Congress. I am not saying that the organic statute or the authorizing statute is meaningless. It survives. But if it is granted authority, then the agency should be able to use it, even if the pollutant is something that they didn’t think of when they passed the statute, or weren’t aware of when they passed the statute. Any more than under the FCC Act, it was radio, that was in 1933, it was radio, but it was interpreted to mean television. It wasn’t a big step.

It’s too bad this wasn’t a cross examination, because Professor Katzen was trapped, and it would have been fun to keep pressing. The next obvious question would have been: “My question was, what’s the limiting principle? You haven’t answered. Please state the limiting principle. Do you have one or not?”

So Professor Katzen was completely outraged that the Supreme Court had struck down the Clean Power Plan (“it was an extreme action taken to shut down rule-making in this area”). Yet she couldn’t come up with any reason why, if EPA could force the shut down of all fossil fuel burning power plants, it could not also ban all burning of fossil fuels for airplanes, cars, industry, agriculture, home heat, etc. She flatly asserted “there are standards” without being able to specify any of them. (There are no meaningful standards in the statute that would constrain EPA in these circumstances, if the courts approved the Clean Power Plan.). The best she came up with was “notice and comment rule-making,” which is not a standard, but rather a procedure. It can be a time-consuming and burdensome procedure, and may generate thousands or even millions of comments, but at the end of that the EPA can just go ahead and implement the rule it started with and planned to implement all along. When Professor Katzen says that “EPA is not able to and does not do whatever it has a whim to do when it wakes up in the morning,” she is just plain wrong.

If you are wondering what the Clean Air Act may actually have to say on this subject, I would point out that the Act is lengthy and nearly incomprehensible. However, in the West Virginia litigation EPA had to come up with something in the CAA to point to as its authority for promulgating the Clean Power Plan, and the best it could do was Section 111(d) of the Act. Here is the text of that section:

(d) Standards of performance for existing sources; remaining useful life of source

(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.

(2)The Administrator shall have the same authority—

(A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under section 7410(c) of this title in the case of failure to submit an implementation plan, and

(B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 7413 and 7414 of this title with respect to an implementation plan.

In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies.

Make of all that mumbo jumbo what you will. What is certainly not there is any limiting principle or standard that constrains what EPA may do to effectively ban use of fossil fuel energy in all sectors, once it is accepted that EPA can regulate CO2 as a “pollutant.” Instead what is found in that section is blanket authority to EPA to set “standards of performance.” And in the Clean Power Plan EPA has set those “standards” in a way to make all use of fossil fuels in electricity generation non-compliant over time. If the courts allowed EPA to do that under this section, there would be nothing to stop it, if it wanted, from setting “standards” to make fossil fuels non-compliant in other sectors.

Here’s the bottom line: Under a statute that gives EPA general authority to set “standards of performance” with respect to “pollutants,” the progressives (including the liberal wing of the Supreme Court) are totally OK with allowing EPA to declare CO2 a “pollutant” 40 years after the statute was enacted, and then set “standards of performance” to ban CO2 and shut down the entire economy one sector at a time. Fortunately, with our current Supreme Court, we’ll get to see how this plays out in places like Germany and the UK before our federal government can impose it on all of us by executive fiat.