The EPA and the Supreme Court

This morning the Supreme Court issued a decision in which it held that federal regulation of greenhouse gases has been given to the EPA by Congress and that the issue has been removed from the purview of the federal courts. It is a wise decision well grounded in federal law.

Seventy-three years ago, in the landmark case of Erie v. Tompkins, the Supreme Court made clear that there was no federal common law. That meant that federal courts applied state laws where there was no applicable federal statute or regulation. This determination has been relaxed over the years in cases involving air or water pollution moving from one state to another. in those cases, the federal courts have stepped in to develop law to govern suits by a state to stop pollution coming from another state. With today's decision, the Court makes clear that once Congress steps in and sets up a mechanism to deal with this type of problem, the courts are no longer in a position to create their own law to deal with the problem. Since the EPA is considering regulations governing greenhouse gases, the courts will not substitute their judgments for those fo the EPA. As a result, a suit by six states and some others against a number of utility companies based upon emissions of greenhouse gases was dismissed by the Court.

The decision seems wise to me. It makes no sense to have federal courts making decisions that could conflict with the ultimate determination of the EPA. On the other hand, this decision recognizes ultimate power in the EPA on this subject. Right now, the EPA is considering regulations that would go much farther than the cap and trade bill that Congress considered but did not pass in the last session. The problem is that an issue as critical to the economy and the country as greenhouse gas emissions has been left to unelected regulators rather than being decided by the people's representatives in Congress.