Lisa Heinzerling

  • March 20, 2017
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.

    I. Delegation of Regulatory Power

    The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.

  • June 17, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    The Supreme Court has split 5-4 in three decisions involving the regulation of greenhouse gases. The federal government's program to reduce greenhouse gas emissions was set in motion by the Court's 5-4 ruling in Massachusetts v. EPA. Another 5-4 decision in Utility Air Regulatory Group v. EPA rejected EPA's application of permitting requirements to stationary sources based on their greenhouse gas emissions alone, and embraced an interpretive principle that would disfavor ambitious agency interpretations of longstanding statutes. In a third 5-4 ruling, West Virginia v. EPA, the Justices voted to stay EPA's regulation limiting greenhouse gases from existing power plants.

    With thin and shifting majorities like these, it is quite clear that one Justice may determine the fate of the country's regulatory programs for climate change.

    The federal government began to regulate greenhouse gas emissions only after losing a case in the Supreme Court. In Massachusetts v. EPA, the Supreme Court rejected the reasons EPA had given for refusing to regulate greenhouse gases under the Clean Air Act. In response to a citizen petition asking the agency to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, EPA had argued that it simply had no authority to regulate these pollutants under the Act. The Supreme Court disagreed by a vote of 5-4 and held that the agency does have authority to regulate greenhouse gases because greenhouse gases are "air pollutants" within the meaning of the Clean Air Act. The Court observed that the broad language of the Clean Air Act reflected "an intentional effort to confer the flexibility necessary to forestall . . . obsolescence" in the presence of "changing circumstances and scientific developments."

    By the same margin, the Court also rejected EPA's policy-based justifications for refusing to regulate greenhouse gases. The Court ruled that EPA erred by citing a "laundry list" of reasons why it preferred not to regulate, rather than grounding its decision in the statutory criterion of endangerment of public health and welfare. Even if the agency found the science of climate change uncertain, the Court said, the agency could not refuse to regulate greenhouse gases unless the science was so profoundly uncertain that the agency could not even form a judgment as to whether greenhouse gases were endangering public health or welfare. "The statutory question," the Court explained, "is whether sufficient information exists to make an endangerment finding."

  • April 14, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center

    *This post originally appeared on the Center for Progressive Reform Blog

    Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab." 

    It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Writing for a 5-4 majority in Michigan v. Environmental Protection Agency(EPA), he found that EPA had erred in declining to consider costs in determining that regulation of hazardous air pollutants – such as mercury – from power plants was "appropriate and necessary" under section 112 of the Clean Air Act. 

    Justice Scalia's reasoning went beyond the statutory provision and agency regulation at hand and suggested that agencies' purportedly general practice of considering costs in deciding whether to regulate had made the interpretive default one in which agencies must consider cost in order to engage in "reasonable regulation." In Michigan v. EPA, in other words, Justice Scalia created a brand-new, dice-loading, anti-regulatory canon of statutory construction. 

    The lower courts have begun to apply this canon with gusto, and in cases far removed from section 112 of the Clean Air Act. In the biggest of these cases so far, MetLife v. Financial Stability Oversight Council (FSOC), Judge Rosemary Collyer of the federal district court in Washington, D.C. relied heavily on Michigan v. EPA in finding that the FSOC had erred in determining that the insurance giant MetLife was a systemically important financial institution – or "too big to fail" – because it had not considered the costs of this designation to MetLife. 

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.

  • June 29, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

    1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The case will go back to the D.C. Circuit for it to figure out how to address the Supreme Court's ruling. Certainly the case will eventually have to return to EPA; the D.C. Circuit itself will not attempt to undertake the consideration of costs the Supreme Court has ordered. But what happens between the time the case goes back to EPA and the time EPA makes a decision in light of the Supreme Court's ruling? That depends on the D.C. Circuit. The court will need to decide whether to remand or to vacate and remand; that is, whether to simply send the matter back to EPA while leaving the rule in place, or undo the rule in the interim. The D.C. Circuit has lately remanded quite a few agency rules, especially environmental rules, without vacating them. Given the amount of discretion left to the agency by the Supreme Court's decision (see below), and the fact that EPA has previously stated that the rule is justified even in light of its costs, I believe there is a strong case for remand without vacatur.

    2. We do not yet know how EPA will or should take costs into account in revisiting the issue of whether to regulate power plants under section 112. The Court left this matter to EPA, with the qualification that the agency's treatment of costs must be, "[a]s always, within the limits of reasonable interpretation." The Court emphasized that it was not holding that the agency must conduct "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Beyond that, the Court gave little hint of the kind of analysis it would approve. At times, it seemed to be looking for a judgment about whether costs were disproportionate to benefits; at other points, it seemed to highlight cost-effectiveness analysis. These are different inquiries, and it will now be up to EPA – at least in the first instance – to decide which of several cost-sensitive frameworks to use. My sense from the Court's opinion is that as long as EPA considers costs in some fashion, whether through formal cost-benefit analysis or something far more qualitative, it will be sufficient.

    3. We do not yet know which benefits EPA may consider for purposes of the additional analysis the Court has required. Although EPA conducted a formal cost-benefit analysis of the rule for purposes of White House regulatory review, and that analysis included billions of dollars in "ancillary" benefits due to reductions in air pollutants not covered by the air toxics program, the Court did not decide whether these ancillary benefits may be included in the analysis yet to come. That is, the Court said, "a point we need not address." Several justices seemed skeptical of these benefits at oral argument, and there is some (small but discernible) textual basis for excluding them. A number of commentators have argued that EPA must be able to consider such benefits because they are included in standard economic practice and because an OMB circular on cost-benefit analysis, dating from the George W. Bush administration, admits them in the cost-benefit framework. I don't think economic practice and an OMB circular will decide this question, but I do think it would be quite aggressive for a court to tell EPA which regulatory benefits count.