ALITO: EPA Case Illustrated Unchecked Power of Judiciary, Bureaucracy

(Matthew Boyer, Liberty Headlines) As part of a wide-ranging critique last week of overbearing government agencies and an excessively interventionist judiciary, Supreme Court Justice Samuel Alito gave credence to the Trump administration’s skepticism about climate change alarmism, by dismissing the premise that carbon dioxide a pollutant.

Speaking at the annual dinner of the Claremont Institute, where he received the organization’s Statesmanship Award, Alito railed against the deference of lawmaking authority to federal bureaucratic agencies. Alito also said that elected representatives – and not unelected members of the judiciary – should define unclear legal mandates.

The speech, given in Newport Beach, Calif., opened the window into Alito’s judicial philosophy a little wider, as his talks with the public are rarely recorded for public consumption.

Alito cited as an example the 2007 case of Massachusetts v. EPA, in which the Supreme Court ruled that carbon dioxide—a chemical necessary for life – is a pollutant, thus requiring the EPA to regulate its emissions from industrial sources. He bemoaned the fact that a slim 5-4 ruling now permits the EPA to determine a compound, that humans literally exhale, to be a pollutant.


“The Clean Air Act was enacted by Congress way back in 1970,” Alito said, “and it regulates the emission of ‘pollutants’ – that’s the term in the statute. Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants.

“Carbon dioxide is not a pollutant,” the Justice continued. “Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.”

Alito, who has served on the Supreme Court since 2006 and was part of the EPA decision, acknowledged the enormous effect the regulation of carbon dioxide has on the economy, but declined to characterize it as good or bad public policy. He did, however, warn that the process employed to arrive at the policy is a dangerous one.

“A policy of this importance should have been decided by elected representatives of the people in accordance with the Constitution, and not by unelected members of the judiciary and bureaucrats,” Alito said. “But that is the system we have today, and it is a big crack in our constitutional structure.”

Alito also criticized his colleagues on the court who ruled in the majority in Massachusetts v. EPA, because they opened the door to consequences that were not intended by Congress when they passed the Clean Air Act in 1970, in which they wanted to address truly harmful pollutants.

“The Clean Air Act says that a stationary source must obtain a license if it emits more than a specified quantity of pollutants,” Alito said. “There are actual numbers in the statute. Well, if you apply those numbers to sulfur dioxide or particulate matter, they make sense. But if you apply them to greenhouse gases, the result is absurd, and the EPA expressly acknowledged that that’s an absurd result.

“OK, then what is the EPA to do? Well, no problem. They took out their pen and crossed out the numbers that Congress enacted, and they wrote in their own numbers. Amazingly, four of my colleagues said this is a reasonable interpretation of the statute.”

Alito also called attention to the problem of the legislative branch passing laws and mandates with guidelines that are too broad, and thus leaving the executive branch with the power to interpret and impose rules and regulations based upon their own judgment.

“There was a time when the Supreme Court put at least some limits on the degree of legislative power that Congress could delegate, but that ended a long time ago,” Alito explained. “Now, once a department or agency promulgates a regulation that purportedly interprets a statute enacted by Congress, the Supreme Court defers to that interpretation, unless it’s unreasonable. And that result has been a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”

At least one critic, Mark Joseph Stern of the liberal online blog Slate, characterized Alito’s remarks as another case of climate change denial. He argued that the majority on the Supreme Court rightly determined that carbon dioxide (not “carbon,” as Stern misrepresented) is a pollutant, and that it asserted its independent judgment in doing so.

“Massachusetts v. EPA was not, contra Alito’s intimation, an example of ‘a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats,’” Stern wrote. “To the contrary: The case marked a departure from the usual deference that courts afford administrative agencies.”

Ultimately, Alito argued that Congress has abdicated, or lost, its lawmaking intent and authority to other branches of government that are all too willing to embrace and impose their own power.

“In a healthy republic,” Alito said, “this issue would be publicly debated, and the basic policy choices would be made by the elected representatives of the people.”