Pruitt could be a game changer at EPA

· December 8, 2016  
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Trump’s selection of Oklahoma Attorney General Scott Pruitt to head the EPA is by far his best non-security domestic policy pick. Choosing the man who led the battles against the EPA’s lawless regulations to head that very agency is every bit as sweet as choosing Sen. Jeff Sessions, R-Ala. (C, 78%) to clean out the Department of Justice. There is no doubt that Pruitt will bring game-changing reforms to the culture of the EPA, and refuse to enforce any regulations that reach beyond the scope of their statutory authority.

There’s just one problem. Any loyal reader of Conservative Review can already guess it. If left unchecked by Congress, environmental legal defense groups, in conjunction with the lower courts, will essentially require Pruitt to enforce many of the regulations Obama implemented with lawless discretion.

Broken and hypocritical rules for standing in court

For much of Obama’s presidency, conservatives were on offense in the courts as sued Obama for legislating from the executive branch in an attempt to crush power plants and manufacturing. Scott Pruitt was a leader in pushing back against Obama’s overreach. Now the Left will turn the tables on him and we will be exclusively on defense in the courts.

Well, don’t liberals have the same right to sue Pruitt’s EPA policies as Pruitt did during the Obama administration?

This is where the rules of standing have been bastardized over the years, and have essentially turned the federal judiciary into an imperial super legislature.

Unless Congress reins in the rules of standing, the bottomless pit of moneyed organizations on the Left will sue Pruitt for not enforcing the endless Obama-era edicts.

Nobody can argue that power plants and manufacturers shouldn’t get standing in a court to sue when the executive branch promulgates regulations without statutory authority. If there is ever a legitimate “case or controversy” with established injury-in-fact to the aggrieved party, it is those industries who face wholesale collapse resulting from EPA regulations. In fact, interpreting the laws passed by Congress on behalf of aggrieved parties in the face of lawless administrative fiat — rather than vetoing legislation and redefining the Constitution — is quintessentially the business of the courts.

Contrast this with the environmental legal defense groups that launch class action suits simply because they stand in opposition to the ideology of those in power. Even though there is no established personalized injury, they seek to enact cap-and-trade style policies without passing a bill in Congress. When Democrats are in power, these groups work together with the agency. When conservatives are in power, however, these same groups get the courts to do their bidding against the will of the agency. They should never have standing in court to simply oppose policies they disagree with when agencies are following the letter of the law. Yet, in the ‘70s, the Supreme Court began overturning settled law regarding the rules of standing and essentially granted any third party ideological group standing to sue against the lack of overzealous environment regulations. [1]

Unless Congress reins in the rules of standing, the bottomless pit of moneyed organizations on the Left will sue Pruitt for not enforcing the endless Obama-era edicts. They will largely succeed for a number of reasons. As we’ve noted many times, the lower courts are a dumpster fire and it will take years to clean them out, if ever. In particular, the critical D.C. Circuit is a disaster — with an 11-1 liberal majority on the district level (among non-senior judges) and at least a 7-4 liberal majority at the appellate level. We will find that a court system so committed to the “Chevron doctrine” — which proscribes broad deference to agencies that regulate beyond the scope of congressional authority — will suddenly become heavy-handed enforcers of laws that never passed Congress against the wishes of the agency.

Even if we win a few defensive victories in the courts, there is no limit to the number of avenues that the Left can use to attack a conservative EPA on every facet of environmental regulation policy. The victories are usually narrowly tailored to each circumstance, giving the Left more bites at the apple.

Further complicating things for Pruitt is Massachusetts v. EPA. Another lawless 5-4 decision from Anthony Kennedy in which he ruled states can get standing to force the EPA to regulate carbon dioxide — even though no such law passed Congress — the grievance is speculative and political, and the ability to redress it is even more notional. This ruling occurred at the end of the Bush Administration and will come back to haunt us as blue states file endless lawsuits. This is very different from what Pruitt did when he was protecting states from economic collapse stemming from regulations that never passed Congress. Again, the key element is what the text of the law actually says and the nature of the grievance for standing.

Over the years, the courts have always blocked out conservatives from obtaining standing in court to sue when agencies are not following the letter of the law. At the same time, they grant left-wing groups standing to sue in matters such as a monument of the Ten Commandments, where there is no tangible injury whatsoever. This is why courts have consistently prevented law enforcement, states, and taxpayers from suing the administration for not enforcing unambiguous congressional immigration laws, even as their communities and jurisdictions are flooded with crime and the fiscal drain of importing criminal aliens. Those grievances are always deemed “speculative,” while the global warming groups get standing without question.

Consequently, the courts will be the last stand for the Left when it comes to pushing for cap-and-trade and amnesty. They already have the votes in the lower courts to push their agenda.  

As always, Congress is king    

To that end, Congress must rein in the ability of the legal profession to enact judicial regulations in place of Obama’s administrate regulations. As we’ve noted many times, with few exceptions, the courts only have jurisdiction over the subject-matter granted to them by Congress. The power of the courts to engage in judicial review over agency regulatory policy comes from Sections 701-706 of the Administrative Procedure Act. Congress must revise 5 U.S.C. § 702 to raise the threshold for injury-in-fact, causation, and redressability as it relates to third party groups suing for non-economic or phony economic grievances.

In addition, Congress can pass a bill making it clear that the EPA has no authority under existing law to regulate carbon dioxide or promulgate any of Obama’s rules, such as the mercury, Boiler MACT, and Cross-State Air Pollution Rule (CSAPR) rules. Congress should also place a provision in the April budget bill prohibiting any funding for the EPA to enact those regulations.

With the courts out of the way, Pruitt can be let loose to systemically reform the entire agency. Much like with Jeff Sessions, the confirmation of Scott Pruitt is all hands on deck for conservatives.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.