NCPA - National Center for Policy Analysis

Who's Afraid of the EPA?

September 8, 2015

On June 2, 2014, the Obama Administration unveiled its key climate change initiative, the Clean Power Plan, targeting CO2 emissions from U.S. electrical power plants. In its proposal, the Administration took the unusual step of claiming Chevrondeference -- preemptively asking federal courts to defer how the plan will be interpreted entirely to the U.S. Environmental Protection Agency (EPA).

Chevron deference, named for a seminal 1984 Supreme Court ruling, is an oft-used administration principle of law claiming that federal courts should defer to reasonable agency construction of the statutes they are charged with administering. Fundamentally, the principle is an extension of Congress' lawmaking powers whereby agencies are delegated authority by Congress to interpret congressional mandates.

  • The D.C. Court of Appeals, which has jurisdiction for judicial review of the Clean Power Plan, applies the doctrine of constitutional avoidance in instances where the agency's interpretation of its mandate would raise constitutional difficulties.
  • The Supreme Court ruled in King v. Burwell, that the presumption should be against Chevron in instances when the agency's interpretation of its mandate would expand agency control over issues of "deep economic and political significance."
  • The EPA's Clean Power Plan contravenes every principle undergirding Chevron deference. For starters, the agency enjoys no delegation of congressional authority to remake the retail electricity market, nor does the rule enjoy any semblance of electoral accountability. Also, the agency lacks expertise in overseeing the nation's electric grid.

The EPA's track record does not suggest that it can be trusted to take a reasonably transcribed interpretation of any congressional mandate to regulate emissions from any sector of private life or industry. The agency's expansive interpretation of the Clean Air Act, for instance, should give federal judges pause when considering whether or not to grant Chevron deference to a repeat offender.

Source: William Yeatman, "EPA's Clean Power Plan Overreach," Competitive Enterprise Institute, July 28, 2015.

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