Thursday, April 23, 2009

Is the EPA Undemocratic?

In the wake of the Environmental Protection Agency's decision last Friday to propose to find that greenhouse gases endanger public health and welfare, some are claiming that the EPA is undemocratic.

For example, Jonah Goldberg wrote in today's Chicago Tribune that the EPA's decision resulted from a double dose of anti-democratic behavior:  The least democratic branch, the Supreme Court, permitted a "politically autonomous" agency, the EPA, to regulate greenhouse gases.  When the EPA proposed to regulate them on Friday, then, the decision "choked" democracy.

This of course ignores the Clean Air Act, legislation that was passed by the most democratic branch and specifically authorizes the EPA's decision.  The Clean Air Act requires that the EPA

shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.

42 U.S.C. Sec. 7521(a)(1).  The EPA under the Bush administration refused to make such a judgment, and, as a result, failed to act.

State and local governments--democratic and accountable--joined in a suit against the EPA, and the Supreme Court in 2007 in Massachusetts v. EPA ruled that the Clean Air Act required the EPA to form a judgment related to whether air pollutants "cause or contribute to air pollution . . . reasonably . . . anticipated to endanger public health or welfare," and not some other judgment (say a political judgment). 

The EPA, after forming an appropriate judgment under the Clean Air Act, found that greenhouse gases contribute to air pollution and are reasonably anticipated to endanger public health and welfare.  It issued its proposed rule on Friday and opened up a 60-day period for public comment.

In short: The most democratic branch passed legislation; democratic state and local governments joined a suit to ensure that the legislation was enforced; they won; and the enforcing agency opened a democratic public comment period before finalizing its rule.

Just what about this process "chokes" democracy?

The problem with Goldberg's claim is that it reduces a serious argument about separation of powers and democratic accountability to a mere political ploy.  There may be--or even certainly is--plenty to criticize about the legislative process leading to the Clean Air Act, the way the Supreme Court made its decision, or the likely lack of real impact that any one person might have on the proposed rule through the notice and comment period.  But Goldberg's indiscriminate claim that the EPA "choked" democracy sweeps far too broadly and in the process mocks--and thus devalues--an otherwise important point about democracy.

SDS

http://lawprofessors.typepad.com/conlaw/2009/04/is-the-epa-undemocratic.html

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