It’s not uncommon for me to meet with clients before or after regular business hours. It enables me to meet with my clients without interfering with their regular scheduled activities. This morning I went to a client’s early. On my way back I listened to NPR on the car radio as I usually do (yes, I got caught in the snarl on the Kennedy this morning). They reported on a case in Texas in which the EPA was found to have overreached its authority in a case involving interstate sulfur dioxide emissions. If I hadn’t read about this story before hearing NPR’s take on it, I would hardly have recognized it.
In the NPR coverage it was presented as a miscarriage of justice by a, presumably, out-of-control appellate court on behalf of power a companies. The decision would result in additional sickness, death, and medical expense. As best as I could tell they quoted only from the dissent and, possibly, from the EPA’s attorneys.
The U.S. Court of Appeals for the D.C. Circuit said in a 2-1 decision that the Environmental Protection Agency had exceeded its mandate with the rule, which was to limit sulfur dioxide and nitrogen oxide emissions from power plants in 28 mostly Eastern states and Texas.
In the latest setback for the EPA, the court sent the Cross-State Air Pollution Rule back for revision, telling the agency to administer its existing Clean Air Interstate Rule – the Bush-era regulation that it was updating – in the interim. The EPA said it was reviewing the ruling.
I’m not familiar with the details of the case, Texas, or the power companies involved. My concern is for the rule of law. As I understand it, the court’s majority found that the EPA had overreached the empowering legislation, requiring emission standards significantly lower than those required by Congress and that those standards be met with specific remedies where Congress had explicitly allowed significant flexibility.
Good intentions are not enough. If the law does not allow a federal agency to accomplish the objectives of an incoming administration, go back to Congress and change the law. If you can’t get Congress to change the law or don’t feel that you should need to bother going back to Congress, take up needlepoint. Don’t make up the laws as you go along. That puts you in the same moral category as drug dealers, burglars, and tax scofflaws. They’re all just trying to get by.
Good intentions are not enough. Very, very few people set out explicitly to do evil. They all have good intentions. The problem with approving of a regulation because it’s well-intended is that the other guys have their own good intentions and you may not like their good intentions at all.