Is EPA regulation of carbon dioxide anti-democratic?

There’s been a lot of noise from House Republicans (and others) about how EPA regulation of carbon dioxide under the Clean Air Act is somehow an end-run around Congress or anti-democratic.  But it is neither.

Consider the first point:  The Clean Air Act is drafted in very general terms, including in its definition of air pollutants almost any type of emission.  At a number of stages in the Act, EPA is required to regulate air pollutants from various sources and in various ways.  Thus, it is not EPA that capriciously interpreted the Clean Air Act so as to give itself lots more authority.  Instead, it was the Congress of the 1970s that wrote a broad statute – and the Supreme Court of 2006 that interpreted that statute to (more or less) require EPA to regulate greenhouse gas emissions from automobiles (Massachusetts v. EPA)  The statutory logic that led the Court to its conclusion in that case also requires EPA to regulate other sources of those emissions under the Act.

Now Congress can always amend the statute if it wants.  And amendment could occur through either amending the underlying statutory language of the Clean Air Act, or using Congress’ control of the appropriations process to deny EPA any funding to implement regulation of carbon dioxide emissions under the Act.  So far, House Republicans have pushed the second option, perhaps because it is not so politically perilous as directly amending the Clean Air Act.  They can say that they’re not against “clean air” just against runaway bureaucracy!

But there’s nothing here that’s an end-run around Congress.  EPA is (as bureaucracies should do) implementing the orders of the legislature through duly enacted laws.

What about anti-democratic?  Well, that’s not very persuasive when the Congress itself is hardly a model of democracy, if that’s defined as giving citizens equal voices in decisionmaking.  Large population states such as California are seriously underrepresented in Congress.  California, with 37 million people has the same Senate representation (2 Senators) as Wyoming (just over 500,000 people).  In case you’re counting, that means the average Wyoming voter has 54 times as much power in the Senate than California.  Even worse, we effectively have supermajority voting in the Senate thanks to the relentless use of the filibuster by Republicans over the past three years.  That gives small states even more power in legislation.  So it’s hard to argue that Congress is a bastion of democracy.  In fact, the President is arguably much more democratic (because he is elected at a national level – although even here there is some skew in the Electoral College in favor of small states), and it is President Obama who has direct supervision over EPA.

But the other thing to consider here is the global nature of the problem.  Greenhouse gases emitted from the United States don’t just harm Americans.  They harm people around the world.  In fact, it’s probably true that the benefits of greenhouse gas emissions disproportionately benefit Americans and the costs disproportionately fall on people outside the borders of the United States.  It’s hard to argue for the primacy of democratic values when the voters in question are benefiting from those kinds of externalities imposed on individuals who can’t participate in the decisionmaking process.

Lastly, it’s entirely possible that if we do nothing, we’ll have control over climate change taken away from our representatives in Congress anyway.  If the impacts of climate change are severe enough, a lot of countries around the world that are facing adverse impacts might look for alternatives such as geoengineering: taking active steps to manage the global climate to offset global warming.  One of the cheapest and most realistic options is the distribution of sulfur particles into the upper atmosphere.  This is currently possible with existing technology (you just need a lot of artillery or tanker planes!) and estimates for what it would cost to reduce the global temperature by a few degrees range from between $10 and $100 billion/year.  That’s well within what a number of countries around the world could afford to do – and again, if the impacts of climate change are bad enough, there’s nothing to stop them.  The United States then might find that other countries are trying to set the global thermostat – with no say from our Congress.  To me, having EPA take steps to reduce climate change now seems like a better choice from the perspective of democratic accountability.

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Reader Comments

10 Replies to “Is EPA regulation of carbon dioxide anti-democratic?”

  1. I think the part of the argument against the EPA regulating CO2 that the opposition conveniently forgets is that 3 cities and 13 states and US territories sued the agency in the Supreme Court to do that very thing.

    Thank you for making that point in your post.

  2. I think the part of the argument against the EPA regulating CO2 that the opposition conveniently forgets is that 3 cities and 13 states and US territories sued the agency in the Supreme Court to do that very thing.

    Thank you for making that point in your post.

  3. So let me get this straight: If your arguments are to be consistent with each other it’s not undemocratic because the EPA is simply implementing the instructions of a statute passed through an undemocratic process 41 years ago? I think a more forthright argument is that this regulation, like much that federal agencies do, is insulated from the democratic process by design. Indeed, this is one reason for such broad delegations of authority in the first place — to overcome the de facto supermajority requirements of the legislative process and to allow agencies to pursue policies that the legislature would not directly approve.

    JHA

  4. So let me get this straight: If your arguments are to be consistent with each other it’s not undemocratic because the EPA is simply implementing the instructions of a statute passed through an undemocratic process 41 years ago? I think a more forthright argument is that this regulation, like much that federal agencies do, is insulated from the democratic process by design. Indeed, this is one reason for such broad delegations of authority in the first place — to overcome the de facto supermajority requirements of the legislative process and to allow agencies to pursue policies that the legislature would not directly approve.

    JHA

  5. Thanks for the very helpful comment Jonathan. Let me try to clarify my argument.

    The point of my first rebuttal is that there is no evasion of Congress. The EPA’s actions are well within the procedures laid out by Congress as you agree. The point of the second rebuttal is that Congress is hardly a model of democracy, so even if there is an evasion of Congress, going through the EPA process isn’t all that anti-democratic in comparison, especially given that it is supervised by the branch that has a national constituency. That follows what is (implicitly at least) the argument made by many of the opponents of EPA regulation here, which is to first deny that the Clean Air Act allows/requires EPA to do what it is doing, and then to contend that this must therefore be an effort to subvert the democratic process.

    Moreover, there is nothing inconsistent with arguing that (a) the EPA’s actions are well with the instructions of prior decisionmaking by a (relatively) undemocratic branch, and then noting that (b) criticisms of EPA for not being democratic because the current Congress has not directly approved those actions are unwarranted because the current Congress is also not a model of democracy. EPA (as it implements the statutory language of the prior Congress) may not be any more democratic then the current Congress, but that is a far cry from saying that such implementation is an improper subversion of the democratic process.

    One might object that with all its flaws the Congress of today is more representative than the Congress that passed the Clean Air Act 41 years ago (as you refer to in your post). But remember that the Clean Air Act actually did pass Congress (including President Nixon!) while no changes have as of yet passed the Congress of today. If such changes do occur, EPA should of course comply with them. But it is not very clear to me that just because individual members or houses of Congress today object to EPA regulation but are unable to get legislation passed, that is somehow more “democratic” than EPA following the instructions of a past legislature that did manage to get through both houses and then was approved by the President.

    In fact, my argument is even stronger than that. Taking as given the enactment of legislation that requires further implementation, which is a more democratic option: allowing the agency (ultimately responsible to the President) to proceed with implementing the statute, or requiring Congress to weigh in and approve any major actions by the agency? There are at least two points here. First, the inertia of the legislative process (as you allude to) makes it harder for the legislature to take action than to do nothing. That is particularly true in our system of governance where there are lots of veto points. Again, it’s just not clear to me that it is more democratic for us to allow an administrative agency to comply with duly enacted statutory language, as opposed to requiring all major regulatory actions to be approved by a very slow, balky legislative process. In other words, if you flipped the default rule (such that no major government action could occur without Congressional approval) why is that more democratic, given that minorities will be able to use the many veto points in the legislature to obstruct action the majority wants?

    Second, EPA might interpret and apply the existing statutory language in ways that are more consistent with public preferences because of (for instance) direction by the more democratically accountable President. (This is a standard argument made in the 1980s by supporters of Reagan’s efforts to impose more direct Presidential control over the bureaucracy.) Also note that the fillibuster was *not* used for ordinary legislation in the 1970s when the Clean Air Act was enacted, unlike today. (That was the point of the graph that I linked to in the original post.) So in fact there are substantial differences between the two Congresses. The current one is arguably much more undemocratic than in the past because of stricter supermajority requirements.

    Finally, there is still the point that the particular nature of the problem of greenhouse gases (large externalities, possible unilateral action by other countries) means that the arguments based on democracy for Congressional approval here are particularly weak. The democratic advantages (such as they are) of Congressional approval either (a) may not be a particularly relevant value, given the externalities, or (b) may be made moot by actions by foreign countries.

    As with all rebuttals, the post wasn’t intended to provide a unified, coherent justification of EPA regulation. If you want such a justification (i.e., why do we want to have agencies in charge of regulation, instead of requiring any major changes to go through the Congressional process), then you would want consider issues such as agency expertise, and (as you note) insulation from Congress. Note that there are arguments that even insulating agencies from Congress and the President (by devices such as requiring judicial review of agency decisionmaking by unelected courts) is a tool that helps advance democratic values by shielding agencies from capricious decisionmaking by elected representatives, capricious decisionmaking that is contrary to public positions on important issues. (See, e.g., Matthew Stephenson’s article here: http://www.law.harvard.edu/faculty/mstephenson/pdfs/StephensonOptimalPoliticalControl.pdf)

  6. Thanks for the very helpful comment Jonathan. Let me try to clarify my argument.

    The point of my first rebuttal is that there is no evasion of Congress. The EPA’s actions are well within the procedures laid out by Congress as you agree. The point of the second rebuttal is that Congress is hardly a model of democracy, so even if there is an evasion of Congress, going through the EPA process isn’t all that anti-democratic in comparison, especially given that it is supervised by the branch that has a national constituency. That follows what is (implicitly at least) the argument made by many of the opponents of EPA regulation here, which is to first deny that the Clean Air Act allows/requires EPA to do what it is doing, and then to contend that this must therefore be an effort to subvert the democratic process.

    Moreover, there is nothing inconsistent with arguing that (a) the EPA’s actions are well with the instructions of prior decisionmaking by a (relatively) undemocratic branch, and then noting that (b) criticisms of EPA for not being democratic because the current Congress has not directly approved those actions are unwarranted because the current Congress is also not a model of democracy. EPA (as it implements the statutory language of the prior Congress) may not be any more democratic then the current Congress, but that is a far cry from saying that such implementation is an improper subversion of the democratic process.

    One might object that with all its flaws the Congress of today is more representative than the Congress that passed the Clean Air Act 41 years ago (as you refer to in your post). But remember that the Clean Air Act actually did pass Congress (including President Nixon!) while no changes have as of yet passed the Congress of today. If such changes do occur, EPA should of course comply with them. But it is not very clear to me that just because individual members or houses of Congress today object to EPA regulation but are unable to get legislation passed, that is somehow more “democratic” than EPA following the instructions of a past legislature that did manage to get through both houses and then was approved by the President.

    In fact, my argument is even stronger than that. Taking as given the enactment of legislation that requires further implementation, which is a more democratic option: allowing the agency (ultimately responsible to the President) to proceed with implementing the statute, or requiring Congress to weigh in and approve any major actions by the agency? There are at least two points here. First, the inertia of the legislative process (as you allude to) makes it harder for the legislature to take action than to do nothing. That is particularly true in our system of governance where there are lots of veto points. Again, it’s just not clear to me that it is more democratic for us to allow an administrative agency to comply with duly enacted statutory language, as opposed to requiring all major regulatory actions to be approved by a very slow, balky legislative process. In other words, if you flipped the default rule (such that no major government action could occur without Congressional approval) why is that more democratic, given that minorities will be able to use the many veto points in the legislature to obstruct action the majority wants?

    Second, EPA might interpret and apply the existing statutory language in ways that are more consistent with public preferences because of (for instance) direction by the more democratically accountable President. (This is a standard argument made in the 1980s by supporters of Reagan’s efforts to impose more direct Presidential control over the bureaucracy.) Also note that the fillibuster was *not* used for ordinary legislation in the 1970s when the Clean Air Act was enacted, unlike today. (That was the point of the graph that I linked to in the original post.) So in fact there are substantial differences between the two Congresses. The current one is arguably much more undemocratic than in the past because of stricter supermajority requirements.

    Finally, there is still the point that the particular nature of the problem of greenhouse gases (large externalities, possible unilateral action by other countries) means that the arguments based on democracy for Congressional approval here are particularly weak. The democratic advantages (such as they are) of Congressional approval either (a) may not be a particularly relevant value, given the externalities, or (b) may be made moot by actions by foreign countries.

    As with all rebuttals, the post wasn’t intended to provide a unified, coherent justification of EPA regulation. If you want such a justification (i.e., why do we want to have agencies in charge of regulation, instead of requiring any major changes to go through the Congressional process), then you would want consider issues such as agency expertise, and (as you note) insulation from Congress. Note that there are arguments that even insulating agencies from Congress and the President (by devices such as requiring judicial review of agency decisionmaking by unelected courts) is a tool that helps advance democratic values by shielding agencies from capricious decisionmaking by elected representatives, capricious decisionmaking that is contrary to public positions on important issues. (See, e.g., Matthew Stephenson’s article here: http://www.law.harvard.edu/faculty/mstephenson/pdfs/StephensonOptimalPoliticalControl.pdf)

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Eric Biber

Eric Biber is a specialist in conservation biology, land-use planning and public lands law. Biber brings technical and legal scholarship to the field of environmental law…

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