Posted by Jonathan Adler:
Another *Mass v. EPA* Op-Ed:
http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167237708
I wrote another op-ed on the Massachusetts v. EPA case. This one was
for a pro/con feature distributed by the McClatchy-Tribune news
service. It [1]ran in yesterday's Columbus Dispatch. Here's an
excerpt:
A basic principle of our governmental structure is that all
legislative powers of the federal government are vested in the
legislature. As a consequence, federal agencies, including the EPA,
possess only those powers given to them by Congress. Controlling
greenhouse gases would be the greatest regulatory undertaking ever
contemplated in environmental law. As such, it is simply
implausible that Congress would have delegated such authority to
the EPA without saying so, yet nowhere does the Clean Air Act
explicitly delegate authority to adopt such rules. . . .
The clear intent of the act as amended in 1967 and as subsequently
amended in 1970, 1977 and 1990 is to control local and regional air
pollution, such as soot and smog. Every time Congress has sought to
address a broader environmental concern, such as ozone depletion or
acid rain, it has explicitly authorized the EPA to act. Moreover,
if carbon dioxide and other greenhouse gases are pollutants for the
purposes of Section 202, they are almost certainly air pollutants
for the Clean Air Act�s "nonattainment" provisions as well, as the
language is virtually identical. Yet the regulatory measures that
are required by these provisions � the creation and enforcement of
national ambient air-quality standards � are fundamentally
incompatible with the regulation of greenhouse gases as such.
Arizona State University's Joseph Feller wrote the [2]opposing
article. Here's an excerpt from his piece:
t is not up to the EPA, or the courts, to decide whether automobile
emission standards are a wise, reasonable or economical way to
control air pollution. Congress decided that automobile-emission
standards are a good idea, and instructed EPA to issue them for any
air pollutant that endangers the public�s health or welfare.
If Bush�s EPA doesn�t agree with the Clean Air Act, it can ask
Congress to change it. Until then, to paraphrase Donald H.
Rumsfeld, the EPA should implement the law that Congress wrote, not
the one that it wishes Congress had written. And if the EPA refuses
to follow the law, then the courts should order it to do so. After
all, that�s their job.
References
1.
http://www.dispatch.com/editorials-story.php?story=dispatch/2006/12/26/20061226-A9-01.html
2.
http://www.dispatch.com/editorials-story.php?story=dispatch/2006/12/26/20061226-A9-03.html
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