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Image shows graphics of leaves and co2 with a down arrow, along with text "Chevron Going Down"

Last year I wrote that the Supreme Court of the United States, SCOTUS, ruling in the West Virginia case, is a sign of things to come. That case buried a fork in the Obama administration’s Clean Power Plan. The legislative and executive branches would have to modify the Clean Air Act to pass such limits. In response to the ruling, Politico quoted SCOTUS Chief Justice Roberts: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day. But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d) [of the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself or an agency acting pursuant to a clear delegation from that representative body.”

By “sign of things to come,” I meant SCOTUS would continue to take power away from the administrative branch of government and require Congress and the White House to grind it out in the sausage line.

EVs Through the Backdoor

Let’s roll up to the present day. The editorial board at The Wall Street Journal, among others, reported that the Biden EPA imposed CO2 caps on automobiles requiring about two-thirds of vehicles sold to be electric by 2032. The EB rarely gives me a chuckle, but this did – “The U.S. auto industry is nominally still privately owned, but it is slowly becoming a de facto state-directed utility.” They write that the EPA lacks the authority to mandate EVs, so they are doing it through CO2 regulation, which the SCOTUS has already rejected. It won’t stand.

An aside: The Journal’s EB writes that EVs are already driving up automobile prices across the board because EVs are not profitable and, therefore, subsidized by ICE mobiles. I don’t know whether that is true, but it is certainly true that car prices are breaking all-time highs.

Graph shows how many weeks of income are needed to purchase a New Light Vehicle.National Public Radio agrees with the EB. They say cars over the price of $60,000 (more than the income of the average American) have skyrocketed from 8% of the market to 25%. Meanwhile, sales of inexpensive economy cars, like the Nissan Versa, have plunged 78%. NPR writes, “they’re [car companies] especially focused on fat margins, instead of big volumes, because they’re investing heavily in new electric vehicles (EVs).”

Fishing for Power

SCOTUS recently hooked a much bigger fish than West Virginia, and they will likely rule on it this term ending June 30. The fish (Supreme Court Case) is called Loper Bright Enterprises v. Raimondo, the latter of whom is the Secretary of Commerce. The core of the case involves the Magnuson-Stevens Act, which regulates fishing in federal waters. Lower courts have ruled that the Commerce Department has deference to set rules as it sees fit, including Magnuson, which requires fishing vessels to carry a government overlord to ensure the fish have a fair chance. On top of that, fishing companies must pay up to 20% of their haul to cover the cost of the overlord’s salary.

The lower courts ruled that the 1984 Chevron case permits the agency to require fishing vessels to carry and pay for the overlord under Chevron deference. The Chevron v the Natural Resources Defense Council case involved the Clean Air Act and the definition of a “stationary source” of electricity generation noted in the Act. Gee, I wonder what a stationary source of power generation would be??? The SCOTUS handed all power to the EPA, and that spread to other agencies, including the National Marine Fisheries Service, which enforces the Magnuson-Stevens Act.

Here are some excerpts from Chevron:

“The [DC circuit court of appeals] court observed that the relevant part of the amended Clean Air Act “does not explicitly define what Congress envisioned as a ‘stationary source, to which the permit program should apply.

“The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term “stationary source” when it had decided that Congress itself had not commanded that definition. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.9 If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute,10 as would be necessary in the absence of an administrative interpretation.

“The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, [my emphasis] by Congress. Morton v. Ruiz

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. [my emphasis] Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”

What could possibly go wrong?

Chevron Going Down

I’m not an attorney, but I can read. There are supposed to be three equally powerful branches of government – legislative, executive, and judicial. Chevron gave us the fourth, the administrative branch, which is accountable to no one. I believe the Constitution works like this: if power or authority isn’t granted to the federal government in writing, it doesn’t exist. E.g., powers not given to the federal government go to the states. To demonstrate, just a couple of weeks ago, the SCOTUS refused to take appeals by oil companies for suits brought by states regarding damage due to climate change. However, I predict this SCOTUS will strip federal agencies of authority to force fishermen to carry G-men and the EPA to remake the auto industry.

Then what? The heck if I know. There may be Chevron tags on many administrative rules and regulations. The line of plaintiffs will be long.

Jeff Ihnen

Author Jeff Ihnen

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