Neither the opinion nor the quote from Kagan's dissent says that
administrative law is dismantled and it doesn't say that Congress can't authorize agencies to do all sorts of things. The opinion says the EPA wasn't authorized by an almost never used provision of the Clean Air Act to require a "generation shifting" approach forcing electricity produces to shift power generation from production on one source (coal or natural gas) to new production from a new source (natural gas or renewable).
Kagan disagrees with the opinion, saying that the EPA was authorized by congress to put in place the regulations they implemented.
To comply with this opinion, all congress would have to do is amend the Clean Air Act to authorize the EPA to do something like issue regulations to address climate change including the reduction of greenhouse gasses by requiring industries to shift production sources to those which produce less greenhouse gas emissions.
Really, the Clean Air Act wasn't designed to address climate chance - it was to address air harmful / toxic air pollutants that were immediately and directly harmful to human health. Congress probably just needs to pass a new act all together authorizing the EPA, or other agencies, to address climate change. It was passed in 1963, amended twice in the 70's and for the last time in 1990. We should have some expectation that Congress can act to address things more than once every 30 years? Having the EPA trying to shoehorn regulations into authorizing legislation that is 30-60 years old to address concerns that were just getting onto the radar in 1990 does not make a lot of sense.
I get it that congress has a really hard time getting its act together to do anything - but we shouldn't just cede all authority to the executive because congress has problems. Then all it takes is one executive (Trump) to screw everything up.
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In response to this post by Seattle .Hoo)
Posted: 06/30/2022 at 12:56PM