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Obama/Biden’s EPA Power Grab Blown Up

July 2, 2022

By Paul Homewood


This is perhaps the most far reaching decision made in the Supreme Court for some time.

Behind all of the legalese, it sets very powerful limits on the power of executive agencies, what we might call quangos:



The Environmental Protection Agency had its way with both the Clean Air Act and the U.S. Constitution for decades. The Supreme Court’s decision Thursday in West Virginia v. EPA may be the beginning of the end of this baleful era. It closes the window on sweeping climate action by federal agencies without a congressional mandate.

In a 6-3 decision by Chief Justice John Roberts, the court held that the Clean Air Act doesn’t authorize the Clean Power Plan, or CPP, through which the Obama administration sought to force America’s electricity sector to switch to renewable sources. The plan would limit each state’s total allowable greenhouse gas-emissions under the banner of “performance standards” for power plants. That was the strategy the EPA had pursued for nearly a decade as its best option for imposing climate regulations by unilateral executive action.
The EPA’s attempt to impose such a scheme on states was particularly bold because Congress had just declined to enact a similar scheme. After the 2008 election, Democrats introduced the Waxman-Markey bill, a sweeping cap-and-trade scheme to reduce carbon emissions dramatically. Even with Democratic supermajorities in both houses, Congress failed to pass the bill.
After his party lost the House in 2010 President Obama turned to the EPA, which in 2015 promulgated the Clean Power Plan. The basic idea of the CPP was to pressure states into shutting down coal and (eventually) natural-gas plants and switch to renewable electricity sources. The agency resorted to an obscure provision of the original Clean Air Act that lay largely dormant for decades. It empowers the EPA to designate a “best system of emissions reduction,” or BSER, for existing facilities.
The provision had been used only a handful of times, mostly for solid-waste incinerators, to reduce emissions “inside the fence line” of the facility itself.
The EPA decided that BSERs could extend beyond the fence line to the whole economy. The CPP would have imposed costly technological requirements within its purview, but also imposed standards that would force states to switch to natural gas and eventually renewables. The agency even planned to adopt nationwide standards on how and when you are allowed to use electricity in your own house.
There were a host of statutory and constitutional problems with this scheme, and the Supreme Court stayed it in 2016. In 2019, the Trump administration replaced it with the Affordable Clean Energy rule. That rule held to the traditional “inside the fence line” approach and accordingly focused on modest emissions improvements at coal plants. On the last day of Mr. Trump’s presidency, however, the powerful U.S. Circuit Court of Appeals for the District of Columbia vacated the Trump rule.
Normally, that would automatically reinstate the old rule, but the Biden administration immediately asked the D.C. Circuit to hold back on reinstating the CPP while it contemplated a new rule.
States led by West Virginia appealed to the Supreme Court, which decided yesterday that the EPA lacked the statutory authority for the CPP. The justices held that the EPA’s sudden discovery of a “transformative expansion” in its regulatory authority based on an obscure provision of “a long-extant statute” raised a “major question” about the agency’s authority, requiring Congress to speak with far greater clarity than it did in the statute. The EPA’s expansive definition of BSER, the court held, presented every kind of major question that had previously drawn the justices’ skepticism: It entailed impacts of great political significance, sought to regulate a significant portion of the American economy, and intruded into areas that are the province of state law and another agency (the Federal Energy Regulatory Commission).
One issue the court unfortunately didn’t focus on was the federal coercion of state governments. The EPA normally has the power to do itself whatever it’s asking states to do. But in the CPP, even the EPA admitted that it has no statutory authority to impose directly the measures it was asking states to take. It got around that by using its power to shut down coal plants as leverage to seize control of state policy in areas far beyond its jurisdiction.
The decision leaves the EPA with one narrow path forward for sweeping climate action, namely the adoption of national ambient air quality standards for carbon dioxide. That would put the agency in the absurd position of setting the right level for a natural component of the Earth’s atmosphere, which states either would automatically attain or could never attain, leading to a train wreck of state implementation plans under the act.
That in turn would force the Supreme Court to examine an unheralded federal expansion of its own creation, namely its 2007 holding in Massachusetts v. EPA, which held that carbon dioxide is a pollutant under the Clean Air Act. That made the mess the court finally began to clean up in its decision Thursday.
In his concurrence, Justice Neil Gorsuch heralded the decision’s historic import: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Obama’s Clean Power Plan attempted to limit carbon dioxide emissions on a State by State basis, but with no legal authority from Congress behind it.

The Plan, since abolished by Trump, along with Biden’s new proposals were supposed to be a key plank in cutting US emissions.

Without it, the US carbon cutting strategy relies even more heavily on massively subsidising renewables/taxing fossil fuels. But such a strategy is unlikely to find its way through Congress, even with its current Democratic majority. With the almost inevitable GOP landslide in November, Biden’s pledge at COP26 to cut emissions lies dead in the water.

  1. July 2, 2022 12:30 pm

    Yup – this is bloody good news – possibly the best news I have heard in this subject area for a long long long long time.

    • The Informed Consumer permalink
      July 2, 2022 6:17 pm

      Don’t get too excited. This was expected and the left have already plotted a response. The EPA is now adopting a stance on alternatives, ozone being one. They are in the process right now of using it to stop drilling in the Permian basin.

    • alexei permalink
      July 2, 2022 7:48 pm

      Not good news for everyone. Action has been passed to the individual states and the blue states see this as a green light to forge ahead with their restrictions. WA state governor is now pushing for 48% (why not 50%??) reduction in C02 by 2030.

      • John Hultquist permalink
        July 2, 2022 10:08 pm

        48% (why not 50%??)

        Probably for the same reason $4.99 seems like a better deal than $5.00.
        Besides the WA State governor is clueless about these issues and just follows the green agenda along with the OR & CA politicians — also clueless.

      • Phoenix44 permalink
        July 3, 2022 7:39 am

        But that’s fine. Now if people don’t want that, they can vote him out or move.

      • Phoenix44 permalink
        July 3, 2022 7:42 am

        Shops use to price at $4.99 to reduce theft. The shop assistant can’t just take a $5 bill and pocket it whilst hoping the customer doesn’t notice it hasn’t been rung up. They have to give change.

      • dave permalink
        July 3, 2022 10:36 am

        Phoenix 44

        Perhaps shops should make assistants turn out their pockets in the morning. Too many pennies and you are on the naughty step!

        The ruling IS good. Comes immediately after reversing Roe v Wade. And after making decisions to protect Christians. The Supreme Court seems to have decided that it is now safe to come off the fence and smack around the Mad Left for a bit.

        Whatever happens with individual issues, it still leaves the USA with the long-standing, entirely unsatisfactory, situation that its laws and regulations are so vast and interlocking that- literally – they are impossible to understand and therefore impossible to obey. It was estimated decades ago (obviously an underestimate now) that were two million laws people had to know and obey, many of them simply contradicting one another.

        It gets even more absurd: for example, when anybody enters the USA they are presumed to know all the laws of all the world, and to have checked whether any of them have been infringed during the manufacture or sale of their possessions.

        Since everybody (including the Justices of the Supreme Court!) is unwittingly a criminal whose “crimes” will be uncovered by sufficiently exhaustive investigation, the effect is that moral people live in unconscious fear and are super-cautious, while non-moral people say, “Might as well be hanged for a sheep as for a lamb” and act like gangsters.

  2. Gamecock permalink
    July 2, 2022 1:33 pm

    ‘One issue the court unfortunately didn’t focus on was the federal coercion of state governments.’

    Nor bribing. E.g., Feds paying states to implement totalitarian Red Flag laws. Congress can’t/won’t do it, so they try to get the states to. At least they’ll be spending blue state money in red states. How odd Congress votes no on an issue, yet votes yes to fund bribing states to.

    • H Davis permalink
      July 2, 2022 5:01 pm

      There may be some hope here also because the EPA ruling (a repudiation of the Chevron doctrine) also applies to other agencies like the ATF and all the nonsense they’ve been up to recently like bump stocks and ghost guns.

      • dave permalink
        July 3, 2022 10:38 am

        A good point. There are many other fiefdoms.

  3. terence carlin permalink
    July 2, 2022 1:41 pm

    Interesting the the Wall Streets journal’s detailed analysis of the decision is completely at odds with yesterdays BBC’s news talking head who basically said the decision of the supreme court would make no difference to Biden’s strategy but then again it was the BBC so what do you expect impartial news reporting

  4. that man permalink
    July 2, 2022 1:43 pm

    “…the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

    A superb put-down by Justice Gorsuch.

  5. July 2, 2022 3:00 pm

    The big problem remains, namely that carbon dioxide is not the problem, it is not even a problem.

  6. sid permalink
    July 2, 2022 4:05 pm

    Its my bloomin plant food for the cows

  7. jimlemaistre permalink
    July 2, 2022 5:07 pm

    The whole ‘Net Zero’ system is about ‘Appearances’ . . . NOT the clean up of pollution. We take industries that ‘Appear Clean’ by ignoring their implicit ‘Embodied Energy’ and allow them to sell ‘Carbon Credits’, also known as ‘Carbon Allowances’, that work like ‘Permission Slips’ for companies that Pollute Excessively.

    Then these ‘Excess Polluters’ who buy ‘Carbon Offsets’ get to continue polluting, unabated without spending a single dime on removing the REAL pollution going up their smokestacks . . .

    This is a game of ‘slight of hand’, a ‘Magician’s Trick’, trading 4 quarters for a dollar . . . when it comes to cleaning up the Air we Breath or the Water we Drink . . . It LOOKS amazing . . . on paper . . . while in practice . . . It improves NOTHING . . . it is no better than moving the deck chairs on the Titanic from one side of the deck to the other . . . hoping that the list will be corrected . . .

    Net Zero . . . is a 1 Trillion $$ per year Fraud . . . perpetrated on the well-intentioned masses around the world by the Scientific Ignorance of Environmentalists intent on destroying the Fossil Fuel industry.

    What Planet Earth needs is Scrubbers and Electrostatic Precipitators and Nitrous Oxide Burners on EVERY smokestack NOW . . . Oops . . . that would mean that Environmentalists would have to ‘Crawl into bed’ with the dreaded fossil fuel industry and Industrialists to implement systems that Actually Work at cleaning up the Planet. These systems remove up to 97% of the ‘Foul Effluent’ coming from the smokestacks . . .

    Oh My . . . Actual Clean-Up . . . No No No . . . We must destroy them all . . . We won’t need the clean-up . . . They will all be gone . . . no need . . .

    Environmentalists have a Magic Trick . . . ‘Net Zero’ . . . let’s try that . . . Our Buddies in the ‘Clean Green’ energy world will help us sell that and they will get rich at the same time . . . Elon Musk Anyone ??

    Oh . . . The Media doesn’t understand Science either . . . ‘They will help us sell this’ . . . Good! . . . Well Done!

    Complete Madness . . . the innocent masses continue to suffer the world over . . . buried in smog and real pollution . . . because REAL solutions are NOT advocated . . .

    For an ‘Honest Report’ please read the following paper . . . The Devil is in the Details . . .

  8. David Wojick permalink
    July 2, 2022 6:02 pm

    My take: There are lots of happy reports on the Supreme Court’s ruling throwing out EPA’s so-called Clean Power Plan. Some go so far as to suggest that EPA is barred from regulating power plant CO2 emissions.

    It is not quite that simple and the result is rather amusing. EPA is still required to regulate CO2 under the terms of the Clean Air Act, but that Act provides no way to do that regulation. The Clean Power Plan attempted to expand an obscure minor clause in the Act to do the job but SCOTUS correctly ruled that the clause does not confer that kind of massive authority.

    EPA is between a rock and a hard place. It should tell Congress that it cannot do the job and needs a new law, along the lines of the SO2 law added to the Act in 1990, curbing emissions. But such a law has zero chance of passing in the foreseeable future.

    EPA is stuck. What they will now do is anybody’s guess. Enjoy their dilemma!

    • Curious George permalink
      July 2, 2022 7:46 pm

      Meanwhile they enjoy their salaries.

      • David Wojick permalink
        July 2, 2022 11:04 pm

        They have lots of other damaging work going on in the name of climate change. Phasing out HFCs for example. But that they cannot regulate CO2 is still great news.

  9. July 2, 2022 10:44 pm

    Abolish EPA and repeal Climate ChangeActs.
    Send Boris, wife, Ed Milliband, to Antarctic on a one way ticket: problems solved!

  10. Lee Christal permalink
    July 3, 2022 12:49 pm

    The E.P.A. has evolved into a powerful monster that thinks it knows better than the American People.

    The E.P.A. forced Obama’s Clean Power Plan on the American people. This is their attitude about it:

    Under oath, E.P.A. administrator Gina McCarthy (Obama’s point person to get his Clean Power Plan adopted) could not deny that the effects of Obama/Biden’s Clean Power Plan had no possibility of materially reducing the Earth’s temperature.

    Here is her sworn testimony regarding the effect of the Clean Power Plan:

    Chairman Lamar Smith: “On the Clean Power Plan, former administration assistant secretary Charles McConnell said at best it will reduce global temperature by only one one-hundredth of a degree Celsius. At the same time, it’s going to increase the cost of electricity. Do you consider one one-hundredth of a degree to be enormously beneficial?”

    Administrator McCarthy: “The value of this rule is not measured in that way.” (Well, it should be!) “It is measured in showing strong domestic action which can actually trigger global action to address what’s a necessary action to protect…”

    Chairman Smith: “Do you disagree with my one one-hundredth of a degree figure? Do you disagree with the one one-hundredth of a degree?”

    Administrator McCarthy: “I’’M NOT DISAGREEING that this action in and of itself will not make all the difference we need to address climate action…

    According to the E.P.A.’s own numbers, Obama’s Clean Power Plan was going to cost $78 billion per year, and by the year 2100, after spending over $6 TRILLION dollars on the plan, it was estimated that it would save between .006 and .0015 degrees Celsius.

    • Malcolm Skipper permalink
      July 3, 2022 8:51 pm

      Thanks, Lee, for this post. Do you have a link? Thanks.

  11. dennisambler permalink
    July 3, 2022 11:55 pm

    This paper has a lot of background on the Endangerment Finding, and how the EPA is linked with the IPCC and UEA, written in 2011. Trump tried to sort the EPA, which was another reason he had to go.

    “The United (Nations) States Environmental Protection Agency”

    This was Obama’s Head of the EPA, Lisa P Jackson, during her first year in office:

    “During my first year as Administrator, the EPA finalized an endangerment finding on greenhouse gases, proposed the first national rules to reduce greenhouse-gas emissions under the Clean Air Act and initiated a national reporting system for greenhouse-gas emissions. All of these advances signaled historic progress in the fight against climate change.”

    “Climate change must be considered and integrated into all aspects of our work. While the EPA stands ready to help Congress craft strong, science-based climate legislation that addresses the spectrum of issues, we will assess and develop regulatory tools as warranted under law using the authority of the Clean Air Act.”

    2012, “Lisa P Jackson, EPA Administrator – Fulfilling the UN Mission”

    • Malcolm Skipper permalink
      July 5, 2022 1:13 pm

      Thank you, dennisambler, this is helpful.

    • jimlemaistre permalink
      July 5, 2022 3:35 pm

      I too thank you for this outstanding research paper which I will say proves collusion behind the scenes . . . Driving ‘Climate Change’ and the ‘Clean Green’ agenda.

      Excellent expose Mr. Dennis Ambler . . . !!

  12. July 4, 2022 3:17 pm

    No *fight against climate change* exists, only the illusion of one.

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