Expert: Health ruling could be used to challenge pollution rules

He writes:

But consider the following question:

Under the Clean Air Act, the government has the authority to order a company to install a pollution control device. Does use of this authority compel a firm inactive in the market to become a market participant against their will in violation of the Health Care ruling?

It might seem, at first blush, that the statute authorizing such an order would clearly exceed Congress’ newly circumscribed power to regulate interstate commerce.

But Driesen’s post notes “there are many signs that the ruling will not invalidate all of the many regulations that compel action,” citing “significant doctrinal limits” in the landmark ruling.

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“The court said Congress may regulate what individuals do, not what they do not do. The pollution control requirement does regulate an ongoing activity, pollution producing production, not inactivity, even if it does so by ordering a product purchase,” he writes.

The lengthy post predicts the ruling won’t be successfully used to knock down pollution rules, but adds that “this new front on the regulatory battlefield will likely enrich a lot of lawyers.”

However, the decision could influence regulation indirectly, Driesen writes, even though he doesn’t think it creates jeopardy for proscriptive rules.

It could prompt federal lawyers to push agencies toward more flexible regulatory approaches like performance standards and emissions trading, he argues.

“[G]overnment lawyers’ instincts tend toward mollification on the margins, and one can imagine them choosing the most flexible techniques possible, even where technical limitations (like monitoring difficulties) make them poor policy choices, to avoid an order to purchase a specific type of device,” Driesen writes.