The online review discussion is posted in the comments section of Hima's post below.
Last week we discussed the Ma. v. EPA (pdf) Supreme Court decision. In that case the court ruled that Congress in passing the Clean Air Act ordered the EPA to regulate air pollution caused by new car emissions. So, unless the EPA could demonstrate scientifically that emissions were not air pollution it had to regulate - it had no choice. Consider this case in light of our discussion of delegating legislative authority (Mistretta) and in light of the MS v. Johnson case. See this NYT article on the case.
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The EPA should probably be considered quasi-legislative and quasi-execuitve since it creates rules (laws) which is clearly legislative and then has the power to enforce them which is clearly executive. In MS v. Johnson the court ruled that it could not tell the executive branch to carry out duties unless they were ministerial such as in Marbury v. Madison. If the duties are executive, meaning they require judgment , then the court cannot force the executive branch to act. In this light it would seem that the EPA ruling could be inconsistent with MS v. Johnson if you could prove that the decision to not regulate car emissions is an executive and not ministerial decision.
That being said, if you study Mistretta you will see that in passing the Clean Air Act of 1990 that Congress did follow the intelligible principle and set up clear expectations about why it was passed, who was supposed to managed and enforce it (EPA), how the enforcement would occur and set up specific guidelines to aid in their rule making and enforcement. Following this principle, I believe the court could rule that the decision to regulate car emissions was not left open to a degree large enough for the EPA to exercise discretion in its regulation as an air pollutant.
An interesting twist was in the USA Today (yes I know it’s the McPaper it just happened to be nearby). The article points out that the “only way to reduce carbon emissions it to improve mileage, because carbon emissions depend on how much fuel is burned.” And since the U.S. Department of Transportation sets fuel economy standards, it is outside of the scope of the EPA to effect car emissions. Furthermore, the federal law allowing the DOT to set fuel economy standards means that all state laws that set separate standards (CA, ME, CT, MA, NY, NJ, OR, RI, WA and soon MD when O’Malley signs the bill) are possibly pre-empted by the federal law.
This whole case is somewhat strange. I agree with propagandhi's analysis of the Johnson and Mistretta cases.
I feel like there's a piece of the puzzle missing in this EPA case. I mean, who likes pollution or thinks emissions aren't pollution? It just doesn't seem to add up? Maybe there's something to the USA Today article? Maybe the EPA feels that it's hands are tied in this regard. Maybe new legislation should be introduced. Since science is always improving so should legislation that relates to that science.
-Patriot
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