W.V vs. EPA is a REALLY big deal. The US Supreme Court seriously spanked the EPA for trying to use the Clean Power Plan to regulate greenhouse emissions in any or every industry it chooses.
Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan. Under the “major questions doctrine,” there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. This is one such case, so the EPA must point to “clear congressional authorization” for the authority it claims. It cannot do so.
The EPA has admitted that issues of electricity transmission, distribution, and storage are not within its traditional expertise, yet it claims that Congress implicitly tasked it with the regulation of how Americans get their energy. Without “clear congressional authorization” for the EPA to regulate in such a manner, the agency lacks authority to implement the Clean Power Plan under the Clean Air Act.
A case where an Agency’s bureaucrats decided that its Administrative expertise trumped that of the law passed by Congress outlining what it actually could do – SCOTUS said, “No can do – stop and stay in your lane.” SCOTUS said that you can’t keep doing what the Executive Branch agencies have done for decades: mission or Powers creep. Bureaucracies ALWAYS want to do more than what Congress allowed them to do and have no problem in trying to “self-justify” their action and ignoring the Constitution and their authorizing legislation. In short, do something until slapped down. Lots of our elected representatives think the same way:
- NH State Rep. Debra DeSimone (R): “The Constitution is a guideline.”
- NH State Rep. Sandra Keans (R, now D): “I don’t try to justify anything by the Constitution, it’s not my job, and I don’t want to do it.”
- NH State Rep. Susan Almy (D): “Well, you don’t get to decide what is Constitutional, and I don’t get to decide what is Constitutional; the judiciary decides what is Constitutional.”
- President Obama: “The Constitution is an imperfect document, and I think it is a document that reflects some deep flaws in American culture” (BHO, 9/01)
- Fmr. Chancellor of Boston University John Silber: “I don’t believe anybody has a right to own any kind of a firearm. I believe in order to obtain a permit to own a firearm, that person should undergo an exhaustive criminal background check. In addition, an applicant should give up his right to privacy and submit his medical records for review to see if the person has ever had a problem with alcohol, drugs, or mental illness . . . The Constitution doesn’t count!”
NOAA’s National Marine Fisheries Services decided that it, too, could pull an EPA and didn’t have to follow their authorizing Law and tried to force fishermen in the Gulf of Mexico to use GPS to tell NMFS where they were all the time ($3000 for the unit plus a $75 monthly monitoring fee. Their reason that NMFS believed they were right?
The ruling is major for many reasons, including that the government tried to claim that charter boat fishing is a “closely-regulated industry” to which the Fourth Amendment does not apply.
Sure, regulations beat Constitutional Rights. Good times, good times – not. Yeah, and all innocent people have to now buy their own ankle monitors, too. And NMFA was found guilty of “exceeded the authority granted by the Magnuson-Stevens Act (MSA), and was arbitrary and capricious in violation of the Administrative Procedure Act (APA). NCLA also complained that the rule required reporting economic data that had nowhere been specified by the agencies in proposing the rule for comment.”
Make crap up, and who cares about the Constitution and Congressional-passed law. Well, in a snit, NMFS just got smacked again! Shades of Animal House: “Thank you, sir, may I have another?”
Maine lobstermen stirring the pots win bigly in federal court
Back in 2021, the National Marine Fisheries Service, part of the National Oceanic and Atmospheric Administration (NOAA), issued an opinion in pursuit of preserving the endangered right whale. As these edicts go, this “opinion” has basically force of law when it comes to imposing conservation-based measures, rules and restrictions.
The right whale, which has a population hovering at a tad less than 350 individuals, has been a focus of efforts for some years. The lobster industry, reviled by many environmentalists, became an easy target for a revised set of regulations when the Biden administration took over. And they hammered them.
…At the heart of the case is a set of much-debated regulations, including new gear-marking mandates, a reduction in the number of vertical lines in the water, the insertion of weak points in rope, and a seasonal closure of a nearly 1,000-square-mile area off the Gulf of Maine.
…The rules were the first of three phases designed to reduce the risk to the whales by 98% in 10 years. But opponents have said that level of risk reduction would simply shift the extinction scenario from the whales to the lobster industry. Fishermen have long contended that right whales are not in Maine waters, and there has never been a right whale death attributed to Maine’s lobster industry.
Environmentalists, however, have argued that just because a death hasn’t been linked to the fishery doesn’t mean it hasn’t happened; a historical lack of gear marking has made it difficult to determine where an entanglement occurred.
All documented entanglements from 2016 to 2018 were linked to Canadian gear.
“Doesn’t mean it hasn’t happened” – I agree with the author in that it’s the argument that stupid losers throw out when the see the Judge’s eye start to coldly narrow and the cast on his face is worse than your Dad’s when he caught you red-handed (although not as bad as your Mom’s face – THAT was a terrible thing to face!).
And THAT is a big problem for me. ENOUGH of this nonsense – Legislators NEED to write the laws and stop throwing their messes over the wall and allowing bureaucrats to make stuff up as “Administrative Law,” which is not found ANYWHERE in the Constitution. Enough of this “delegation of Powers,” which only results in bureaucrats taking that next mile. And having done it once, NMFS did it twice – and paid the price:
…The court’s ruling found NMFS overstepped its authority when it used worst-case scenarios and pessimistic assumptions in its crafting of its biological opinion, which required it to create new rules, which required lobster fishermen to switch to new gear.
…“This history shows the Congress did not want economic activity stopped in its tracks whenever complete data was lacking,” the court wrote. “To say uncertainty is a reason to veto a federal action is to say that many valuable activities must cease, even if the risk of jeopardy is not ‘likely,’ but speculative.”
The court added that the NMFS biological opinion was “capricious” and “contrary to law.
“The service’s legal reasoning was not just wrong; it was egregiously wrong” in that it based some of its legal arguments on legislative history rather than statute, Ginsburg wrote.
And here’s my favorite part from the Judge, which is ALSO my largest lament nowadays given what I see in Life around me in our erstwhile Constitutional Republic – CIVICS and how our political/history system should be working:
“As any high school civics student should know, legislators vote on and the president signs bills, not their legislative history,” Ginsburg wrote. “Statutory text and structure do not authorize [NMFS] to ‘generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species whenever it faces a plausible range of values or competing analytical approaches,” the court wrote. “The statute is focused upon ‘likely’ outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic.”
See my “Progressives
The tide is turning (yes, intentionally) on bureaucrats in that they, like us, MUST start to Follow the Law. You know, like us? I hope that SCOTUS continues this line that the LEGISLATURE makes the law – not them.
HT | Hot Air
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