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Affordable Clean Energy Rule: Determining the Rule of Law

William L. Kovacs

June 2019

Affordable Clean Energy Rule: Determining the Rule of Law

June 19, 2019, is a day of infamy for advocates of the costly and complex federal regulations to address climate change issued by Obama era regulators at the Environmental Protection Agency (“EPA”). On that day, the Trump EPA announced that it was replacing Obama’s Clean Power Plan with the Affordable Clean Energy Rule (“ACER”).

The contrast between the two rules could not be starker. Obama’s Clean Power Plan used the federal rule-making process to set strict emission standards on America’s power and manufacturing industries, imposed rigid state plan requirements that mandated the reduction of the use of certain forms of energy, e.g., coal, and subsidized other forms of energy like wind and solar. The Clean Power Plan empowered EPA to restructure all of American life from the types of energy used, to the products that could be manufactured, to the location of industry.

The legality of Obama’s Clean Power Plan was challenged in court by 28 states and hundreds of U.S. businesses. The U.S. Supreme Court stayed the implementation of the law, and it never went into effect.

When the Trump administration took office one of its first deregulatory efforts was to initiate a rule change to replace the Clean Power Plan. Under the new rule, legally effective around July 18, 2019, the energy industry would still be required to reduce carbon dioxide emissions by thirty-five percent below 2005 levels by 2030. The International Energy Agency however, believes a 74% reduction is needed to address the impacts of climate change.

ACER moreover, eliminates the mandates on states to meet federal emission targets. States are now free to determine how energy efficiency can be improved. Finally, ACER is an armistice between the federal government and the coal industry. Effectively, President Obama’s war on coal is over.

While the environmental community is likely to aggressively challenge the new rule in court for not doing enough to address climate change, that challenge will raise a far more significant issue concerning the rule of law in this country. Specifically, the Obama administration viewed the Clean Air Act as a broad grant of authority that allowed it to regulate the economy in ways never envisioned by Congress.

The Trump administration viewed the Obama Clean Power Plan as more than regulatory overreach, and it viewed it as an illegal power grab to shut down economic growth in the name of environmentalism. What is striking in this conflict between two administrations, is that the same law, the Clean Air Act, without any changes by Congress, was thought by the Obama administration, to be a massive source of executive power, while, a few months later, the Trump administration viewed it as an excessive use of executive power that placed illegal restrictions on the entire economy.

In a similar conflict concerning the application of the Clean Water Act, the Obama administration viewed the law as authorizing power to regulate almost all waters in the United States, no matter how small, including water in ditches. Again, the Trump administration viewed the same law as only regulating water bodies that had an impact on interstate commerce. Again, two diametrically opposed positions taken as the law of the nation within a short period and without any congressional action.

This dramatic conflict over the power of the Executive to change the scope, meaning and intent of a law passed by Congress, in a short time, raises a fundamental question about executive power and the meaning of the rule of law.  While the Clean Air Act and the Clean Water Act are high profile environmental regulations, similar regulatory U-turns regularly occur many times, in many areas of law, when new administrations take office.

This conflict over the scope of executive power to regulate (or what legislative powers can Congress delegate) must be resolved to avoid this nation becoming a banana republic. In the likely event the environmental community challenges the Affordable Clean Energy Rule; the U.S. Supreme Court will have the opportunity to provide guidance on the extent of legislative power (discretion) Congress can delegate to federal agencies. The court had the opportunity this term in Gundy v. U.S. to clarify this issue, but it left in place the eighty-five-year-old principle that as long as Congress can point to an “intelligible standard” in its delegation of power to agencies, the agencies have the discretion to legislate. Unfortunately, the term “intelligible standard” is just as vague as the congressional statutes being relied upon by the agency to issue regulations.

In the Clean Power Plan, the Obama administration expanded a complex statute that Congress intended for the regulation of the most harmful air pollutants, into a statute that regulated the most ubiquitous of air emission, carbon dioxide. This regulatory action, if upheld by the court, would allow the executive to regulate the entire economy, a power never intended by Congress. While the Trump administration is attempting to pull back the regulatory overreach, there is still a fundamental question that the court must address – how an agency determines the scope of the legislative authority delegated to it by Congress?

If this issue reaches the U.S. Supreme Court, its decision will be momentous as to how the federal government regulates climate change. But the decision will have a much greater impact on the power of the executive in using regulations to change the policy of the nation.

If the court sets clear limits on the expansion of agency power through regulation, it will limit radical policy swings, especially those occurring between administrations. Conversely, if the court ignores this issue, it is allowing policy swings between administrations that will denigrate the Article I, lawmaking power of Congress.

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  • Why Would Someone of My Age Start a Blog on Government Reform?

Why Would Someone of My Age Start a Blog on Government Reform?

William L. Kovacs

May 2019

Why Would Someone of My Age Start a Blog on Government Reform?

Insanity, ego, to fill my time, to convince myself I am useful, concerned about the direction of my country, having something to do other than watching reality TV, which includes news and commentary, wanting to appear young and cool, to embarrass my kids, or just to be profound or just to be stupid. The best answer is that common saying – “It’s complex.”

I do not have an answer as to what puts me at the computer every day to turn out material on reforming government, a topic which has a small audience on the best of days. However, I do know that the government of the United States has separated itself from the citizens of the United States. We need to find a way to get it under better management if we want to avoid putting our country into a barrel and pushing it over the waterfalls. This is my only explanation of why I am starting a blog at my age.

Starting it has been the learning challenge of my life since I did not grow up with technology and have never been comfortable with it. While at work there was always someone to handle my technology issues. So, I had to learn the basics of computers, websites, blogs, mobile applications, and many terms to get simple ideas into public space. Acquiring such knowledge gave me a great appreciation of the many talents possessed by the people at work who assisted me and the unique value of a great team when trying to achieve the assigned goal.

Knowing that my effort would be an uphill struggle I needed to focus on my passion of wanting to make government work for people who can’t always participate in it due to work, family affairs, or a lack of resources.

When I worked on policy issues, I was somewhat successful. With my counsel, Congress enacted the nation’s first law to regulate hazardous waste and the reorganization of the Penn Central Railroad into Conrail that kept the freight lines operating in the United States. I wrote an early and lead law review to spur recycling efforts throughout the country. In other endeavors, I lead key coalitions to enact Brownfields legislation, the Energy Policy Act of 2005 and permit streamlining legislation for large infrastructure project needing federal environmental review.

Unfortunately, even with significant resources, I failed in my multi-year effort to have enacted the Regulatory Accountability Act which would have required federal agencies to implement the intent of Congress; not the intent of the Executive. The people elect Congress every other year. Each member of Congress is our representative in government. Congress is constitutionally required to make the laws, not the President and indeed not the courts. The one passion I have is to do whatever I can to help Congress reclaim its legislative powers from the Executive and the courts and to ensure it operates as the check on the powers of the other branches of government.

In simple terms, this means we citizens need to elect members of Congress who act as fiduciaries giving their loyalty to the Constitution and the institution of Congress; not the political parties that support them. Political parties are nothing more than self-interested associations organized to gain control of our government. We citizens need the protections provided by the Constitution that mandates strong institutions that act as a check on each other. Relying on political parties to protect us is a fool’s errand since the goal of a political party is to gain control of the government and by extension the wealth and resources of the nation.

Our Framers gave us a Constitution that allows ordinary citizens, in a short time-frame, the right to start a legal revolution by changing the entire government of the country. If we are genuinely as upset with our government as polls suggest, it is time we exercise our legal right to revolt. By voting, we can start a constitutionally sanctioned revolution. 

At my age I am secure enough to state my opinion, to listen to the views of others, accept criticism and to hopefully interest ordinary citizens in adopting and implementing some of the proposed reforms on the unfolding pages. My goal is to generate a discussion on how ordinary people can reclaim the management of their government.

I solicit your ideas and I hope you will send them to me. Your comments will be read and if well-written, thoughtful articles, will be placed on the blog with full credit to you. My goal is to get the ideas for government reform into the marketplace. With this background, the readers will be able to decide why someone of my age would start a blog on government reform.

Follow Bill @WilliamLKovacs