For weeks the media have hammered the Trump administration’s environmental record, with a focus on the large number of regulatory “roll backs,” including the June replacement of the Obama administration’s Clean Power Plan. Today 22 Democrat-led states announced a lawsuit claiming the new plan is arbitrary by ignoring the impact of greenhouse gases.
While both sides attack the other, both sides miss the fact that environmental law has been implemented over decades in such an arbitrary manner that it is a political weapon of choice for helping friends and harming enemies. The consistency of administering our environmental laws to achieve steady progress is lost to massive political swings of different administrations.
The arbitrary aspects are clear. Congress passes a law that needs interpretation. The agency assembles facts into a record that fits the narrative of the administration in the White House. Since the mid-1930’s the federal courts have granted deference to agency rule-making determinations. The Supreme Court has been very comfortable allowing Congress to delegate lawmaking authority to agencies.
This court-sanctioned administrative process leaves the meaning of the laws passed by Congress to the discretion of each new administration. The result leaves the primary lawmaker, Congress, out of the rule-making process that determines what a law means and how it is implemented. It is as if Congress is merely a scribe putting words on paper for others to determine their meaning.
This administrative process is especially disconcerting when the old and the new administrations have completely different views of the same laws passed by Congress. One administration believes that a law passed by Congress gives it authority to impose a massive new regulatory agenda, while another administration believes that the same language does not require any regulation or minimal regulation at best.
Two examples illustrate the starkness of the debate. The Obama administration interpreted the Clean Water Act to require the federal government to regulate almost all waterbodies from rivers to ponds to ditches. The Trump administration believed regulations issued under the Clean Water Act could only impact waterbodies that involved interstate commerce, i.e. rivers or interstate waterbodies.
Today’s Clean Air Act announcement is another example. Obama’s Clean Power Plan used the federal rule-making process to set strict emission standards on America’s utility and manufacturing industries, imposed rigid state plan requirements mandating the reduction of the use of certain forms of energy, e.g., coal, and subsidized other forms of energy like wind and solar.
When the Trump administration took office, one of its first deregulatory efforts was to replace the Clean Power Plan with new regulations that raised allowable emission levels and eliminates the mandates on states to meet federal emission targets.
What is striking in this conflict between two administrations is that the same law, without any changes by Congress, was thought by the Obama administration, to be a massive source of executive power, while, a few months later, the Trump administration viewed the use of the laws as an abuse of executive power that placed illegal restrictions on the entire economy. How can the same law support both extremes?
While the court will determine what it believes is the correct interpretation of the law, the situation highlights Congress’ lack of control over the lawmaking process and that diametrically opposite policy swings are acceptable to all branches of government. This is not the rule of law; it is arbitrary rule.
This conflict over the scope of executive power to regulate (or what legislative powers can Congress delegate) must be resolved to preserve the rule of law. Now that the states are challenging the new Trump administration’s rule; the U.S. Supreme Court has the opportunity to provide guidance on the extent of legislative power Congress can delegate to federal agencies.
The court had the opportunity this term in Gundy v. U.S. to clarify this issue, but it left in place the eighty-five-year-old principle that as long as Congress can point to an “intelligible standard” in its delegation of power to agencies, the agencies have the discretion to legislate. Unfortunately, the term “intelligible standard” is just as vague as the congressional statutes being relied upon by the agency to issue regulations.
If the court sets clear limits on the authority of Congress to delegate its responsibilities, it will limit radical policy swings, especially those occurring between administrations. Conversely, if the court ignores this issue, it is allowing policy swings between administrations that will denigrate the Article I, legislative authority, the nation needs for a stable system of law.
William L. Kovacs is the author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, former senior vice president for the U.S. Chamber of Commerce, a counsel on Capitol Hill, and has participated in hundreds of federal rulemakings and testified before Congress numerous times.