Tuesday, April 26, 2011

Your 'modern administrative state' in action

EPA Ruling Kills Shell’s Plans to Drill Offshore Alaska

Here is a perfect example of the Progressive's "modern administrative state" in action (and how it can run amok):
A ruling by the Environmental Appeals Board of the EPA has scuttled Shell Oil Company’s plan to drill its initial exploratory test in Alaska’s Chukchi Sea. This is at least the second time drilling has been deferred or delayed due to environmental concerns. But this time, the reason proffered by EPA seems to be “Because we can.”

The EPA’s appeals board ruled that Shell had not taken into consideration emissions from an ice-breaking vessel when calculating overall greenhouse gas emissions from the project. Environmental groups were thrilled by the ruling.
Progressive ideology maintains the Nation would be better off if the details of legislation is left to 'expert administrators' rather than Congress. And Congress, over most of the last century, has obliged by writing laws that basically ceded legislative powers to agencies of the executive branch. These powers—which have the same force as laws passed by Congress—take the form of 'agency rulemaking'.

As is all-too-often the case, Congress, when drafting the Clean Air Act, granted considerable leeway to the EPA administrator in determining what constituted a pollutant and what regulations to promulgate.

Typical is this language from U.S.C. TITLE 42, CHAPTER 85, SUBCHAPTER I, Part A, § 7411. Standards of performance for new stationary sources:

(b) List of categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by United States; particular systems; revised standards
(1)
(A) The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
(B) Within one year after the inclusion of a category of stationary sources in a list under subparagraph (A), the Administrator shall publish proposed regulations, establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one year after such publication, such standards with such modifications as he deems appropriate.

This example is typical not only for the law establishing the EPA but also the FCC which recently forged ahead—Congressional objections notwithstanding—with a rulemaking,  under the heading "Net Neutrality", regulating the Internet.

It is incumbent on all citizens to engage with their senators and representative, reminding them to scrutinize the laws they are drafting before passing them to the Executive. Failing that will result in Congress' significance declining to the point where we will be permanently in the grip of unelected, unaccountable administrators.