Sue Lani Madsen: West Virginia v. EPA ruling gets back to basics

A federal agency has been reminded its purpose is to administer laws, not make them. Progressive voices claiming the current U.S. Supreme Court is rewriting laws to fit an extremist agenda might just be longing for the good old days when they assumed courts would do exactly that for their special causes, treating the Constitution as a malleable tool instead of the original contract with the people. And Congress has been reminded of its duty to be specific when delegating responsibility.

Recent court decisions reining in the administrative state are a welcome change from decades of an activist court making law from the bench. The U.S. Supreme Court majority opinion in West Virginia v. EPA addressed the question of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted,” according to the majority opinion authored by Chief Justice John Roberts.

But if all you read is mainstream media headlines, you might think the ruling was about activist judges who love power plant emissions.

Conservative judicial philosophy is concerned with the original reading and intent of the Constitution as opposed to a judicial pragmatism assuming an ever-evolving meaning. The minority opinion signed by Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer begins by emphasizing the intended purposes of the agency. It’s a focus on the ends without regard to the constitutional validity of the means.

But the question answered by the court was not whether the specific EPA rules in question are correct or useful but whether EPA was given authority by Congress to make rules with such major impact.

The ruling is likely to affect other federal agencies that have accumulated increasing power under a judiciary progressive activists thought they controlled. And Congress will have to step up and make tough policy decisions instead of reacting when the unintended consequences of agencies operating under vague guidelines slam their constituents. So much easier to say, “Don’t blame us, it’s those darn bureaucrats.”

It’s a tough balance for Congress. Legislative micromanaging of rule-making isn’t practical and monitoring the impacts to close the accountability loop is essential but difficult. And so Congress has allowed certain laws to be challenged by citizen lawsuits as another path to accountability. Such citizen suit provisions are included in a variety of statutes, including environmental, housing, civil rights and the Americans With Disabilities Act.

Relying on lawsuits led to the Equal Access to Justice Act (EAJA), which has been used and abused by nonprofit special interest groups to force policy changes through sue-and-settle negotiations. EPA has been a particularly eager user of lawsuit-driven rule changes. So much easier to say. “Don’t blame us, it’s those darn judges.”

Supporters of sue-and-settle embrace it as an efficient strategy to break through bureaucratic inertia. A lawsuit is brought by a concerned citizen group, often a nonprofit with lawyers on the payroll. The sued agency declines to defend itself and negotiates a settlement approved by the courts. Games can be played by both sides. An agency might benefit from breaking an internal stalemate, the nonprofit may be awarded legal expenses to keep them in the game. According to the most recent report to Congress, “In FY 2021, federal agencies reported paying more than $112 million in awards of attorney’s fees and other expenses under EAJA.”

The EPA under the Obama administration set records for expanding regulatory authority under cover of “the court made me do it” with sue-and-settle rule-making in response to special interest groups. According to 2013 and 2017 studies by the U.S. Chamber of Commerce using public notices of consent decrees as published in the Federal Register, Bill Clinton’s EPA settled 28 lawsuits in his second term. The EPA under George W. Bush settled 38 in his first term and 28 in his second term. Under Barack Obama’s leadership, the EPA signed 60 consent decrees in his first term and 77 in his second.

Sue and settle was taken off the table in 2017 under Secretary of Energy Scott Pruitt during the Trump administration and brought back under President Biden. Current EPA Administrator Michel Regan described policy-making by settlement in his March 18, 2022, memorandum as “the most practical, economical and efficient path forward while also serving the public interest.” But efficiency is not the point. Our system of government was deliberately designed to be clunky in the interest of assuring all interests are heard in the public square. Sue-and-settle takes negotiations behind closed doors and subject to pressure by the currently powerful. It may be fine while your people hold the keys to the room, but not so comfortable when the shoe is on the other foot.

Congress makes the laws and the executive executes, but the dozens of agencies in the executive branch have grown their own interests to protect. Whether you call it the administrative state, the fourth branch of government or the swamp, the EPA and other agencies operate on delegated authority. They are not meant to be policy-making bodies. Maintaining a balance of power between Congress’s legislative responsibility and executive branch authority is where the judiciary rightly steps in saying, “Don’t blame us, just follow the Constitution.”

Contact Sue Lani Madsen at rulingpen@gmail.com