On Monday, in a ruling that will positively impact our district and the entirety of East Texas, the United States Supreme Court overturned portions of the Environmental Protection Agency's new permitting scheme to regulate greenhouse gas emissions from large facilities and power plants and also served a scathing reprimand to the EPA for using their "Tailoring Rule" to revise the level of emissions needed to require an air permit under the Clean Air Act, an act reserved for the powers of Congress.
The ruling not only sent a stern message to the bloated bureaucracies of Washington, but it also delivered a harsh rebuke to our current administration and their very public attempts to outwit the nation and its laws of checks and balances.
Attorney General Greg Abbott challenged these new regulations on the behalf of Texas, citing the Clean Air Act does not explicitly mention greenhouse gas (GHG) emissions and therefore cannot be regulated through the EPA.
In a 5-4 vote, SCOTUS ruled that the EPA cannot require power plants and other facilities to seek building or operating permits based solely on their potential for greenhouse gas emissions.
What many find so appalling is that the current administration will stop at nothing to see that their mandates are implemented, even if it means circumventing Congress yet again. A vague provision of the Clean Air Act states that the EPA can regulate "known air pollutants and unknown 'pollutants of the future.'" In 2009 the EPA took this vague, intentionally ambiguous phrase and used it to justify their incorporation of greenhouse gases into their scope of regulation and permitting schemes.
The Supreme Court caught this effort however, and issued this stern warning:
"We conclude that the EPA's rewriting of the statutory thresholds was impermissible...An agency as no power to 'tailor' legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies...must always 'give effect to the unambiguously expressed intent of Congress.' It is hard to image a statutory term less ambiguous than the precise numerical thresholds at which the Act requires permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the 'bounds of statutory authority.'" (pg. 21)
SCOTUS continues, "Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution's separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, 'faithfully execute' them. The power of executing laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise...But it does not include the power to revise clear statutory terms that turn out not to work in practice." (p. 23)
Lastly, "...EPA asserts newfound authority to regulate millions of small sources - including retail stores, offices, apartment buildings, shopping centers, schools, and churches - and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate...We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate." (p. 23)
Attorney General Abbott was correct in citing this ruling as a victory for the rule of law, the Constitution, and for Texas. I am encouraged to see our checks and balance system still has the ability to hold those in positions of power accountable for their actions. By fighting the encroachment of seemingly 'too big to fail' bureaucracies, we ensure the protection of our state's jobs and resources. We should not tolerate those who choose to maneuver unelected bureaucracies to override the will of the people.
The fight is not over however. At the beginning of June, the current administration announced ambitious plans to cut carbon dioxide emissions by 38 percent by 2020. Texas is the largest emitter of carbon dioxide in the country, with nearly 40 percent of its carbon dioxide emission coming from coal and gas-fired power plants.
My faith in our Constitution and the rule of law that has governed this country through countless numbers of conflicts, social revolutions, and national tragedies, is unwavering. I am comforted by victories like we experienced yesterday that demonstrated the effectiveness of our checks and balance system when government attempts to grow too large.
It remains my pleasure and honor to represent all the people of House District 2. My staff and I continue to welcome your input and your questions. You can contact our office; mailing address: P. O. Box 2910, Austin, TX 78768. Email: District2.Flynn@house.state.tx.us. Toll free number 1-800-734-9515.
May God continue to bless you and the Great State of Texas!
Dan Flynn, State Representative, District 2