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The Beginning Of The End Of Regulation – OpEd

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The Supreme Court – again, with the 6 Republican appointees on one side and the 3 Democratic appointees on the other — limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. This ruling deals a major blow to America’s (and the world’s) efforts to address climate change. Also — as with its decision reversing Roe v. Wade — the ruling has far larger implications than the EPA and the environment.

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West Virginia v. EPA is the latest battle pitting America’s big businesses (in this case Big Oil) against the needs of average Americans. In this Supreme Court – containing three Trump appointees, two George W. Bush appointees, and one George H.W. Bush appointee – big business is winning big time. The financial backers of the Republican Party are getting exactly what they paid for.

Writing for the majority, Chief Justice John Roberts admitted that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’” But then came the kicker: “But it is not plausible,” he wrote, “that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

Not plausible? Congress enacted the Environmental Protection Act in 1970. As with all laws, Congress left it to an administrative agency – in this case, the EPA – to decide how that Act was to be implemented and applied. That’s what regulations do: They implement and apply laws.

For the Supreme Court to give itself the authority to say whether Congress intended to delegate this much regulatory authority to the EPA is a truly radical act – more radical than any Supreme Court in modern history. If Congress has been unhappy with decades of EPA regulation, Congress surely has had the power to pull that authority back. But it has not.

As Justice Elena Kagan, writing for the dissenters, countered: “The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.”

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The implications of the ruling extend to all administrative agencies in the federal government – to the Securities and Exchange Commission implementing the Securities Acts of 1933 and 1934, to the Federal Trade Commission applying the Federal Trade Commission Act of 1914, to the Department of Labor implementing the Fair Labor Standards Act of 1938, and so on, across the entire range of government – and the entire range of regulations designed to protect consumers, investors, workers, and the environment. (This same Supreme Court has ruled that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers be vaccinated or undergo frequent testing.)

In passing laws to protect the public, Congress cannot possibly foresee all ways in which those laws might be implemented and all circumstances in which the public might need the protections such laws accord. Starting now, though, all federal regulations will be under a cloud of uncertainty – and potential litigation.

A final implication of the ruling is that the filibuster has to go. If the Supreme Court is going to require that Congress be more active and specific in protecting the environment or anything else, such a goal is implausible when 60 senators are necessary to enact it. Senate Democrats now have it in their power to abolish the filibuster. The case should convince them they must.

Robert Reich

Robert B. Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, and writes at robertreich.substack.com. Reich served as Secretary of Labor in the Clinton administration, for which Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written fifteen books, including the best sellers "Aftershock", "The Work of Nations," and"Beyond Outrage," and, his most recent, "The Common Good," which is available in bookstores now. He is also a founding editor of the American Prospect magazine, chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

2 thoughts on “The Beginning Of The End Of Regulation – OpEd

  • July 2, 2022 at 1:00 am
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    Thank goodness. The regulatory capture in USA is sickening. The biggest polluters in the world are the US government and are legalized to pollute by the us government. I know reich is an idealist/communist who never grew up, but the faster the bureaucratic nightmare ends in USA, the sooner we can recover.

    Reply
  • July 3, 2022 at 5:03 pm
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    My understanding of “regulatory capture” is capture by special interests, most commonly producer interests. “Capture” of the areas it is set up to regulate in terms of the regulator’s understanding of the general good seems why any regulator is set up. That is why it is important that regulators:
    A) are not partial or party political,
    B) have access to all the expertise available (which expertise is normally developing every day) and
    C) conduct their regulation in a transparent and public fashion so that everyone can understand what is going on and get involved.

    Reply

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