Latest posts by H. Sterling Burnett (see all)
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- Oregon Senate Republicans Fought The Law—And The Public, Not The Law, Won - June 28, 2019
The surest evidence that President Barack Obama’s environmental policies have gone too far comes from the federal courts, which in the past five months have struck down or limited several of his executive orders and regulations.
When Congress, businesses, state governments, and public-interest groups decry overreach by Obama’s executive agencies, the media commonly write off their complaints as self-interested, partisan, or the result of misinformation. But courts, relying on previous Supreme Court decisions, typically defer to agencies’ interpretations of the laws that justify their regulations. In the Supreme Court’s reasoning, when Congress delegates power to an agency, it also grants the authority to “fill gaps” in the statutory scheme by resolving textual ambiguities. Agencies’ expertise usually renders them sufficiently well-informed to parse imprecise terms in their enabling statutes.
That’s why federal courts’ recent actions demonstrate so clearly just how far beyond the bounds of law the Obama administration has strayed. It’s rare for so many of a president’s environmental actions to be overturned in such a short period of time.
On June 26, the Supreme Court set aside a mercury and air toxics regulation established during Obama’s first term. Writing for the majority, Justice Antonin Scalia stated, “It is not rational, never mind ‘appropriate,’ to impose billions of dollars of economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading.”
On July 28, the Washington, D.C. Circuit Court of Appeals ordered the Environmental Protection Agency (EPA) to rewrite its 2011 Cross-State Air Pollution Rule. The court struck down limits EPA had placed on sulfur dioxide and nitrogen oxide emissions. In his ruling, Judge Brett Kavanaugh wrote, “EPA … required states to reduce pollutants beyond the point necessary to keep downwind states in compliance with the agency’s pollution rules, … violat[ing] the Supreme Court’s clear mandate.”
On September 1, district-court judge Robert Junell voided endangered-species protections for the lesser prairie chicken, which is found in Colorado, Kansas, New Mexico, Oklahoma, and Texas. It is quite rare for a federal court to overturn a listing by the U.S. Fish and Wildlife Service, but Junell found that the agency failed to consider, as required by law, the success of comprehensive conservation plans designed and administered by state wildlife agencies and landowners in reducing threats to the prairie chicken before listing the animal as threatened.
Arguably the most stinging setback for Obama’s attempts to rule through executive action came on August 28, when a federal judge in North Dakota blocked the administration’s controversial Waters of the United States rule hours before it was due to take effect.
Over the past decade, the Supreme Court has limited EPA’s authority over isolated wetlands that do not significantly affect navigable waterways. Instead of taking these rulings to heart, Obama’s EPA decided to go big or go broke, attempting to grab the power to regulate millions of acres of land and water not covered by the Clean Water Act by simply ignoring the word “navigable” as a limit on its authority under that law.
Judge Ralph Erickson of the U.S. District Court for the District of North Dakota partially nullified EPA’s action, describing the Obama administration’s interpretation of the Clean Water Act’s jurisdiction as “exceptionally expansive.” Erickson determined there was a high likelihood the states would be harmed if the court didn’t act.
EPA defiantly announced that it would largely enforce the regulation anyway, arguing that Erickson’s ruling applied only to the 13 states under his jurisdiction. On October 9, the agency’s defiance was rewarded with a nationwide injunction issued by the Court of Appeals for the Sixth Circuit. The court found that EPA’s new guidelines are “at odds” with key Supreme Court rulings.
Federal courts should be applauded for righting the balance between state and federal powers and defending freedom and private property against illegitimate exercises of federal power. Though such regulatory abuses began long before Obama became president, his administration has carried them to the extreme. To paraphrase John McClane from Die Hard, welcome to the party, pals.