The Wages of Obstruction

By Yevgeny Shrago

The Environmental Protection Agency proposed a rule today that would effectively end the construction of coal-fired power plants in the United States.  The rule, known as a new sources performance standard, will limit the carbon dioxide emissions per megawatt of electricity produced to 1000 pounds of carbon dioxide, nearly half the the coal plant average of 1,768, rendering it basically impossible to build a coal power plant without extremely advanced (and probably federally subsidized) scrubbing technology.  Nuclear power, natural gas and renewables easily fall below these limits.  Although some pundits are skeptical, if the screaming from industry is any indication, this rule will have some teeth, though it will have no effect on current plants or those slated to be finished this year.  There are at least three things relating to Congressional obstruction to take away from such an aggressive rule.

First, elections matter.  Anyone that sees the Obama Presidency’s first term as a disappointment full of compromises, surrenders to the Republicans, and general betrayal of the President’s election message overestimates the President’s influence over even a friendly Congress and underestimates the true source of presidential power: regulation.  An EPA headed by a Democratic appointee can pass such aggressive rules, while an EPA headed by a Republican appointee may try to deny that carbon dioxide can be regulated under the Clean Air Act at all.  Such decisions are recapitulated in every policy area and give the President tremendous power in guiding national policy.

Second, the Republicans may have made a huge mistake by refusing to cooperate withvarious centrist cap and trade plans that were put forward in the past. Congressional action, even if it were much milder than what environmentalists demand, would have pulled the Obama administration’s teeth on this topic and cost him the moral high ground.  Instead, a second-term Obama, who will likely be clinging to either a tenuous majority in Congress or face a numerically-strengthened opposition, will likely continue using the EPA to do the environmental regulation that America needs. This Obama will know that he has nothing left to gain from cooperation and therefore will probably not hesitate to use the EPA’s considerable regulatory power.  Republican obstruction may give us a better environmental policy than their cooperation.

Third and relatedly, Congressional obstruction leads the President to aggrandize his own power.  A bold carbon regime from the EPA will give the administration control over ever larger portions of the economy, one that easily exceeds the nondelegation doctrine concerns that prevented the FDA from classifying tobacco as a drug in FDA v. Brown & Williamson.  However, with a decision in Massachusetts v. EPA that carbon dioxide is a pollutant for purposes of the Clean Air Act on the books, the odds are unlikely that the Court will curtail the president’s power.  Congress could amend the Clean Air Act, but here the obstruction dynamic is in Obama’s favor: only 41 Senators must support his policies for the amendment to fail, not to mention the potential for Obama to veto the bill and force a showdown.  These things are a ratchet: no President will give back the power he holds without a fight.  As Jack Goldsmith points out in his book “The Terror Presidency”, albeit in a different context, a compliant Congress often curtails Presidential power more than when the President is acting on his executive prerogative alone.  By failing to cooperate, the Republicans may have lost the game on environmental regulation.


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