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Supreme Court to Obama Administration: Congress writes laws, you don't

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By Marita Noon

Now that the dust has settled on the Supreme Court’s 2014 session, we can look at the decisions and conclude that the Obama Administration received a serious smack down. Two big cases got most of the news coverage: Hobby Lobby and the National Labor Relations Board’s (NLRB) recess appointments. In both cases, the administration lost. At the core of both, is the issue of the administration’s overreach.
Within the cases the Supreme Court heard, one had to do with energy: Utility Air Regulatory Group (UARG) v. Environmental Protection Agency — and it, too, offered a rebuke.
The UARG v. EPA decision came down on June 23. The decision was mixed — with both sides claiming victory. Looking closely, there is cause for optimism from all who question the president’s authority to rewrite laws.
A portion of the UARG v. EPA case was about the EPA’s “Tailoring Rule” in which it “tailored” a statutory provision in the Clean Air Act — designed to regulate traditional pollutants such as particulate matter — to make it work for CO2. In effect, the EPA wanted to rewrite the law to achieve its goals. The decision, written by Justice Antonin Scalia for the majority, stated:
“Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers… The power of executing laws…does not include a power to revise clear statutory terms that turn out not to work in practice.”
The Supreme Court did allow the EPA to regulate CO2 emissions from sources that already require permits due to other pollutants — and therefore allowed the EPA and environmentalists to claim victory because the decision reaffirmed the EPA does have the authority to regulate CO2 emissions. However, at the same time, the decision restricted the EPA’s expansion of authority. Reflecting the mixed decision, the Washington Post said the decision was: “simultaneously very significant and somewhat inconsequential.”
It is the “very significant” portion of the decision that is noteworthy in light of the new rules the EPA announced on June 2.
Currently, the Clean Air Act is the only vehicle available to the Administration to regulate CO2 from power plant and factory emissions. However, the proposed rules that severely restrict allowable CO2 emissions from existing power plants bear some similarities to what the Supreme Court just invalidated: both involve an expansive interpretation of the Clean Air Act.
In his review of the UARG v. EPA decision, Nathan Richardson, a Resident Scholar at Resources For the Future, says: “In strict legal terms, this decision has no effect on EPA’s plans to regulate new or existing power plants with performance standards. … However, if EPA is looking for something to worry about, it can find it in this line from Scalia:”
When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy … we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign an agency decisions of vast “economic and political significance.”
The UARG v. EPA decision is especially important when added to the more widely known Hobby Lobby and NLRB cases. Justice Scalia’s opinion invites Congress to “speak clearly” on agency authority. It is now up to our elected representatives to rise to the occasion and pass legislation that leaves “decisions of vast ‘economic and political significance’” in its hands alone.
The decision — while “somewhat inconsequential” — is, in fact, “very significant.” The Supreme Court has, perhaps, outlined the first legislation of the new, reformatted, post-2014-election Congress.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc., and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations’ combined efforts serve as America’s voice for energy.