On Tuesday, President Donald Trump signed an executive order nullifying the Obama administration’s Clean Power Plan, a piece of green-fantasy regulation that was probably illegal and certainly unwise. Democrats are howling and no doubt will sue. Live by executive action, die by executive action: If the Democrats want the Clean Power Plan to be enshrined in law, then they should consider passing a law, or at least trying to. As someone once said, “elections have consequences.”
The Clean Power Plan is the result of a cascade of legal and policy errors, one in which the Supreme Court itself is culpable.
Carbon dioxide is a product of the burning of fossil fuels and other industrial processes, and it is a contributor to what we used to call “global warming” and what we now are obliged to call “climate change.” What should be done about that is a political question, properly speaking, inasmuch as it involves complex economic and environmental tradeoffs that should be negotiated among people who are subject to democratic accountability. Carbon dioxide was never listed as a source of air pollution under the Clean Air Act, which is designed to deal with pollution per se, which is a local phenomenon, as opposed to climate change, which is, by definition, a global phenomenon.
The Clean Air Act could be amended in Congress, but, instead, a coalition of largely Democratic states went to court to force the Environmental Protection Agency to classify carbon dioxide as a source of air pollution under the Clean Air Act, which would oblige the EPA to come up with a plan for regulating it. The case was Massachusetts v. EPA (2007), and the Supreme Court decided it wrongly, issuing a 5–4 decision that obliged the EPA to treat carbon dioxide as a source of air pollution under the assumption that climate change “may reasonably be anticipated to endanger public health or welfare.” Under that standard, we might well regulate Boko Haram as a source of air pollution.
The ruling came in spite of the fact that the EPA itself had previously determined that it had no authority to issue carbon dioxide regulations under the Clean Air Act and a dozen other narrower legal considerations. Justice Antonin Scalia’s dissent is worth taking the time to read.