Administrative Agencies Running Amok: the Greenhouse Gases Case
Commenter Concerned in Canada left an important comment on my post on Charter interpretation by administrative decision-makers. Her underlying concern is broader, however, and is probably shared by many. Here is the comment, lightly edited to focus on the broader concern:
[H]ow concerned are you that your radical approach will essentially boil down to administrative decision makers reaching whatever result they please, relatively clear statutory wording to the contrary notwithstanding? At risk of sounding (and being) overly-dramatic, if ADMs can ignore principles of statutory interpretation, and need identify no ambiguity to bring Charter values to bear, what’s the point of writing down laws at all? Or rather, why would we call them laws? Why not just create an agency, set out a range of relatively comprehensive but optional guidelines, and go from there?
Don’t we need to confine administrative agencies in their jurisdiction, by requiring courts to enforce clear statutory and jurisdictional limits? If we take too relaxed an approach on judicial review of administrative action, don’t we allow administrative decision-makers to run amok?
But I doubt in truth that much separates Concerned in Canada and I. We both believe, for example, that judicial review is important. Where we disagree is on how reviewing courts should draw the boundary lines. Regular readers will know that I think little of abstract concepts such as “jurisdiction” and “clarity”, which provide no guidance in concrete cases, obscuring rather than clarifying the real reasons for judicial intervention. Instead, in cases where deference is appropriate, courts should focus on the internal logic of the decision under review.
Last week’s decision by the Supreme Court of the United States in Utility Air Regulatory Group v. Environmental Protection Agency is a good example. The EPA has the general authority under the Clean Air Act to regulate greenhouse gas emissions as ‘air pollutants’: Massachusetts v. EPA, 549 U.S. 497. In doing so, it faces an important problem: the Clean Air Act is many decades old and is not really designed to regulate greenhouse gases.
One of the difficulties the EPA faced as a result of interpreting some parts of the Act to cover greenhouse gases was that regulation would be inappropriate. Various requirements are imposed by the Act for the construction or modification of any facility emitting more than 100 or 250 tons of pollutants yearly (depending on the type of facility). Applied to greenhouse gases, this casts an inappropriately wide net, one that may well capture hotels and apartment blocks.
The EPA itself admitted that the 250-ton limit would be absurd. So it issued a “Tailoring Rule”, proposing to phase in regulation, first to facilities already covered under other sections of the Act, and then to facilities emitting 100,000 tons of greenhouses gases annually, and then (maybe!) to facilities emitting 75,000 tons. The Court agreed that regulation could be extended to the first category of facilities. But by a majority held that the alteration of the statutory limits was unlawful.
The Court’s decision is telling, an important example of how administrative agencies can be kept from running amok. Scalia J. noted that the EPA was not obligated to regulate greenhouses gases under every one of the Act’s myriad provisions. Its general authority in respect of greenhouse gases was “not a command to regulate, but a description of the universe of substances EPA may consider regulating under the Act’s operative provisions”.
And he went on to explain why the EPA could not permissibly “tailor” the Act by rewriting the 100 and 250-ton limits. Much emphasis was placed on the plain meaning of the numerical limits: the EPA’s interpretation was ‘clearly foreclosed’ by the statute: “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms”. For “[i]t is hard to imagine a statutory term less ambiguous than the precise numerical thresholds…”
By the EPA’s own admission, applying the limits “would be inconsistent with – in fact, would overthrow – the Act’s structure and design”, with “calamitous consequences”. There was “no doubt that the [provisions] are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens”. General regulation of greenhouses gases “would place plainly excessive demands on limited governmental resources”. Moreover, “it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization”.
Rewriting the limits was impermissible:
EPA asserts newfound authority to regulate millions of small sources-including retail stores, offices, apartment buildings, shopping centers, schools, and churches-and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.
Statutory language cannot be waved aside: administrative decision-makers have an obligation to attempt, in good faith, to give effect to statutory commands. Moreover, this was not simply a case of enforcing “clear” statutory limits: it was an attempt to extend a scheme of regulation to sprawling classes of activity to which it was manifestly unsuited, as the agency itself recognized.
One might say that the need to write the limits followed from the extension of the Act to cover greenhouse gases. This may have been a plausible – and reasonable – response had the EPA not in other situations refused to apply a blanket definition: “in each instance EPA has concluded…that the statute is not using ‘air pollutant’ in Massachusetts’ broad sense to mean any airborne substance whatsoever”. So in the EPA’s explanation of its actions, there was an internal inconsistency. For these reasons, Scalia J. was on solid ground in concluding that the rewriting of the statutory limits was unlawful.
In a subsequent post, I will return to the question of ‘clarity’ through the lens of Breyer J.’s dissent.
This content has been updated on June 30, 2014 at 09:50.