The recent Supreme Court decision in Gundy v US may portend a significant change in the way Congress drafts environmental legislation—indeed how it drafts all legislation—in the future. The case, brought by a convicted child rapist, challenges sex offender registration requirements. Looking past the lurid details of the case, the question before the Supreme Court (SCOTUS) involves the question of what constitutes a permissible delegation of power from Congress to the executive branch of government.

It is nearly impossible to conceive of any environmental law enacted in the past half-century or more that does not involve a Congressional grant of authority to the executive branch of government. Take, for example, Section 202(a)(1) of the Clean Air Act[i] (CAA) that provides:

The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare … .(emphasis added)

The Supreme Court’s interpretation of this and other CAA provisions in the case of Massachusetts v US confirmed the authority of the Administrator of the US Environmental Protection Agency to regulate greenhouse gases (GHG) as qualified air pollutants under the Act. Moreover, the Massachusetts court determined that a finding of endangerment by the Agency obligated it to regulate GHG emissions.

The case, now considered settled law, led to the Agency’s 2009 finding that six greenhouse gases, including CO2, do harm the health and welfare of current and future generations. The determination, based largely on the research reports of the United Nation’s Intergovernmental Panel on Climate Change (IPCC), obligates the Trump administration—just as it did the Obama administration–to regulate GHG emissions flowing out of vehicle tailpipes and up from power plant chimneys.

The separation of powers is a cornerstone of the Republic. Implied in the constitutional vestment of legislative authority is a prohibition against Congress off-loading any of its powers to the executive. Merging the powers of one or more of the three branches defeats the checks that were drafted into the Constitution as the means for maintaining balance between the branches—democracy not despotism.

Political theory aside, there are practical matters to consider. Congress is hardly in a position to craft both laws and their implementing regulations. In the case of the Clean Air Act, for example, Congress lacks the scientific expertise to craft emission standards for the various sources.

Of course, Congress could hire the personnel it would need to write regulations into laws and conduct the hearings and other requirements of the Administrative Procedures Act. Having those resources available would create congressional bloat of almost unimaginable size—or at least a size approximating the executive branch.

Rather than internalizing the work, Congress has traditionally delegated it to the executive branch. The delegation is not a blank check. If it were a blank check, the Supreme Court would declare it unconstitutional.

Writing for the majority, Justice Kagan describes Article I, section 1 this way:

Article I of the Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.’ §1. Accompanying that assignment of power to Congress is a bar on its further delegation. Congress, this Court explained early on, may not transfer to another branch ‘powers which are strictly and exclusively legislative.’

But the Constitution does not ‘deny [ ] to the Congress the necessary resources of flexibility and practicality.’

Justice Kagan goes on to explain that a court’s inquiry into the delegation begins with a reading of the statute to determine whether the language supplies “an intelligible principle to guide the delegee’s interpretation.” Kagan further states that once the court figures out the statutory language, the constitutional question all but answers itself.

As long as there is reasonable clarity both as to the purpose of an Act and reasonable boundaries placed around the delegated authorities to the executive, the courts have pretty much stayed out of Congress’ delegation decisions. Only twice in the country’s history has SCOTUS found a delegation excessive. In each case, “Congress had failed to articulate any policy or standard.” Both of those occasions occurred in 1935 early in the Roosevelt administration.

Why the Gundy decision possibly portends an historic shift in Congressional legislative drafting requirements has much less to do with judicial history than it does with the current make-up of the Supreme Court. The case was argued four days before Kavanaugh was sworn in as the ninth justice. As Todd Tucker, a fellow at the Roosevelt Institute, writes:

The plurality decision exposed the Court’s deep polarization, with the four liberal justices finding for the government and four conservative justices hoping for a do-over with Brett M. Kavanaugh, who by court tradition sat out the case — argued four days before he was sworn in.

Justice Gorsuch wrote a dissent nearly twice as long as Justice Kagan’s plurality opinion. Although Justice Alito concurred with the four liberal justices, he let it be known he could be convinced to reconsider the matter:

If a majority of this Court were willing to reconsider the approach, we have taken for the past 84 years; I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

There is evidence in his writings to suggest that Justice Kavanaugh would join with Justice Gorsuch and the other conservatives on the High Court in re-thinking the delegation question. Incredibly since the two 1935 decisions, conservative and liberal justices have agreed on the deferment issue. As the textualists’ hero Justice Scalia wrote–

We have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.

Just after the Gundy decision, it had been thought that a trade-related case, American Institute for International Steel v. US would provide an opportunity for the full Court to revisit the question. The plaintiffs in the case filed suit in the Court of International Trade alleging that Section 232 is an unconstitutional delegation of lawmaking power to the president. Having lost in the Court of International Trade, the plaintiffs appealed directly to SCOTUS. The High Court has refused to hear the case.

As Tucker points out, Gundy is part of a long argument over just how much power Capitol Hill can hand over to presidents. For adherents of the “nondelegation doctrine”—people who believe that any kind of law like this is an invitation to overreach by a bloated executive branch. Libertarians, in particular, dislike the deference and will continue searching out opportunities to test delegations.

A Supreme Court decision to overrule 84 years of established precedence could wreak havoc with climate-related regulation. Consider that in Massachusetts and other environmental law cases deference is not only paid by the Congress to the executive but because of the Chevron deference from the courts to the executive.

The Chevron deference holds that: (1) Congress either did not address the issue in question directly, or addressed the issue ambiguously and (2) the agency is responsible for implementing the statute, and it has interpreted the statute reasonably. Had it not been for Chevron EPA’s endangerment finding would itself have been endangered.

Imagine the chaos and consequences of a time when Congressional deference is no longer possible. Congress in this hyper-partisan age can barely function as it is. No major environmental legislation has made it through Congress in a decade. Years of continuing resolutions are all that has stood between an open and shut-down federal government—and then not reliably.

How will a Congress that can’t agree on the most basic legislative language—let alone the findings of mainstream science—ever see its way clear to agree on the detailed language of a regulation?

Legislative power is not Congress’ to give up—it belongs to the people—and has historically been guarded by the judiciary. Should the judiciary suddenly feel qualified to second-guess the Congress, the future of the nation will be more endangered than the environment.

*************

[i] As added by Pub. L. 89–272, §101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690 and 91 Stat. 791, 42 U. S. C. §7521(a)(1).

Lead photo:  Anna Sullivan courtesy of Unsplash<