There is a fascinating exchange on the principle of Experts Decide All Things vs. what we might call subsidiarity from the Manhattan Contrarian, Francis Menton.
Menton attended a conference at which they were “debating the merits of recent Supreme Court cases that have articulated something called the Major Questions Doctrine as a limit on administrative agency power to promulgate regulations of sweeping import without clear statutory basis.”
An academic lawyer named Sally Katzen defended the side of Experts and the EPA.
Recall first Experts at EPA decided your breath was a pollutant—yes, they did. Carbon dioxide, the very stuff of your breath, the very food of plants, is, Experts at EPA insist, a pollutant. And they were set to shut down all coal and gas because of this Expert ruling.
Blinded, as they were, by “climate change” ideology, and forgetting that carbon dioxide is food for plants. Which I cannot help repeating, as they could not help forgetting. No carbon dioxide, no plants; no plants, no people; no people, no Experts. Photosynthesis is pollution, or something.
You might recall SCOTUS stopped the EPA’s Experts, barely. Katzen commented on the ruling:
Ms. Katzen, her voice dripping with scorn, the Supreme Court has decreed that only the dysfunctional Congress can address the most critical issues facing us. She was particularly critical of the Court having struck down the Clean Power Plan, which in her view was well within the authority granted to EPA under the CAA, as well as being a subject that could only properly be dealt with by people with the necessary expertise, such as the bureaucrats at EPA.
Menton asked what limiting principle, if any, constrains the EPA. Or is it as it seems, that he EPA can do anything it wants, if what it wants is defined, by them, as their Expertise.
Katzen “couldn’t come up with any reason why, if EPA could force the shut down of all fossil fuel burning power plants, it could not also ban all burning of fossil fuels for airplanes, cars, industry, agriculture, home heat, etc.”
He said, “She flatly asserted ‘there are standards’ without being able to specify any of them.”
The best she came up with was “notice and comment rule-making,” which is not a standard, but rather a procedure. It can be a time-consuming and burdensome procedure, and may generate thousands or even millions of comments, but at the end of that the EPA can just go ahead and implement the rule it started with and planned to implement all along. When Professor Katzen says that “EPA is not able to and does not do whatever it has a whim to do when it wakes up in the morning,” she is just plain wrong.
I have been a party to some of these public comments before. A friend of ours, Jim Engstrom, is most diligent about these, and does them frequently, and often asks me and others to submit, too. But I’ve grown cynical about this.
Yes, the EPA asks for comments: but the EPA is free to ignore the public comments it doesn’t like.
The procedure is only that they ask for them, not that they obey or consider them. Obeying would be an affront to the Expertise, and thus impossible to countenance.
About the Clean Air Act itself, Menton says
What is certainly not there is any limiting principle or standard that constrains what EPA may do to effectively ban use of fossil fuel energy in all sectors, once it is accepted that EPA can regulate CO2 as a ‘pollutant.’
Declaring CO2 a pollutant is like declaring a man in a dress a woman. Both have equal scientific validity.
But both are declared by Experts as true. And they have the authority to do so.
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