Dan Sealy, NEC Legislative Analyst
The Power of Congress
Americans were awakened to a stark new reality in the waning days of the recent US Supreme Court session finding some rights and programs assumed safe were, in fact, vulnerable to Supreme Court rulings.
The 6-3 decision by the Roberts Supreme Court used a very narrow interpretation of Constitutional law to determine that the Environmental Protection Agency (EPA) had engaged in over-reach when applying environmental regulations to climate change. The Supreme Court is now stacked with appointees that were screened and approved by the Federalist Society; a non-profit organization started by law students in 1982 who were concerned about an ever more left-leaning federal judiciary. Today the Society has chapters on over 200 law school campuses and boasts a membership of over 70,000 lawyers. Its objectives are “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning”, in other words, interpreting the Constitution literally and challenging Congress to be clear when its intent is to update or change the authorities outlined in the founding document. This Court determined that while Congress passed the National Environmental Policy Act (NEPA) including the EPA to protect the public and environment from toxins in the air, water and on land, the more recent inclusion of climate change was a bridge too far and is outside the jurisdictional scope of the EPA. Although Congress can drive the creation of air-related laws such as the Clean Air Act of 1963 which resulted in regulations to protect the general public from exposure to harmful airborne contaminants; a strict interpretation of the legal intent does not include climate change, according to this court. Many of the programs and regulations governing climate change were accomplished through the use of Executive Orders or were derived from scientific reports without the full force of law. It might be helpful to recall how the Constitution empowers the people to make changes to address such grave concerns as climate change. Though activism is important to demonstrate to Congress and the President the concerns about the climate crisis that are not only scientifically valid but are proving to have demonstrable impacts to the public, court cases cannot be won based upon popularity or strength of purpose. Let’s be reminded of how the Constitution is designed for the government to work.
Policies: Policies are ideas to address issues such as military defense, civil rights or conservation. Policies do not, in themselves, generally hold the force of law but can shape and inform laws. For example, when a President is elected with a large popular vote showing a strong mandate for a specific policy espoused by a successful presidential campaign, that mandate can be used to lead Congress to act on that mandate. The ability to drive policies flows from people, executive level leaders, agencies, legislators and organized groups on all sides of issues.
Laws: Only Congress writes and (sometimes) passes federal laws. Typically, the House of Representatives passes a large number of bills each session but only a few of these are matched with legislation in the Senate. An even smaller number of those are passed by both chambers of Congress and sent to the President for signature. Some potential laws never go from Congress to the President because congressional leaders know the President will veto them and it is rare for Congress to override a veto.
Regulations: When a President signs congressional legislation into law, the language of the legislation not only identifies the intent of the law but also the methods by which the legislation will be implemented, primarily by the relevant agencies creating specific subordinate regulations. Regulations might identify what pollutants will be monitored and regulated by the EPA or how information regarding an animal’s population and habitat threats will be used to determine if that species will benefit from listing it as a threatened or endangered species. If an agency promulgates regulations that are unclear or extend beyond the scope of the Congressional law, individuals, states and organizations can bring lawsuits to address who is right.
In the instance of the recent Supreme Court ruling on the EPA programs to address climate change, the court determined the agency’s regulations were, indeed, beyond legislative scope regardless of good intent.
All this to get to a solution: Public demonstrations push lawmakers to listen to the people. This is the purpose of the First Amendment that guarantees free speech. However, without follow-up at the polls to elect good leaders, those public demonstrations can seem fruitless. Americans turn out in the largest numbers when there is a President on the ballot without realizing the election of members of Congress are, perhaps, more critical to turning policies into laws and confirming federal judges who will uphold those laws. Citizens express frustration at presidents and courts who do not make change happen. The fact is, change happens first with Congress.
Endangered Species
While the Biden Administration was re-writing regulations to protect critical habitat for threatened and endangered engendered species and reverse bad policy for limiting species protection under the last administration, a lawsuit was decided on July 5 by California’s U.S. District Judge Jon Tigar that immediately reversed the Trump regulation rollbacks while the Biden Administration continues to craft language that will be harder for future administrations to hamper. It is likely the Biden Administration will continue to finalize the new regulations rather than appeal the decision.