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Home / Press Release / Attorney General Fox’s Statement on Today’s U.S. Supreme Court Rebuke of EPA Overreach
June 23, 2014

Attorney General Fox’s Statement on Today’s U.S. Supreme Court Rebuke of EPA Overreach

Montana Attorney General Tim Fox issued the following statement following the U.S. Supreme Court’s ruling that the Environmental Protection Agency exceeded its authority, violated federal law, and violated the Clean Air Act:

“Today’s ruling by the U.S. Supreme Court is a victory for Montanans. It affirms what Montana and other states have said in this case and elsewhere: We are a nation of laws, and neither the president nor his agencies are above those laws.  The States are currently facing an onslaught of new regulations from the EPA and other agencies that purport to expand federal authority over waters owned by the States and imposing new regulations on existing power plants.  The Court’s language should also give every federal agency, especially the EPA, clear guidance that their new draft regulations are beyond their authority under current law.”

Last year Montana joined several other states in a U.S. Supreme Court amicus brief challenging the EPA’s regulations in a consolidated case called Utility Air Regulatory Group v. EPA.  Montana and her sister states argued the EPA’s new regulations exceeded its authority and violated the tenets of cooperative federalism contained in the Clean Air Act.  The Court’s ruling today vindicated Montana’s position.

The U.S. Supreme Court’s ruling is available to view or download here. Key excerpts from the Court’s opinion:

“It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give ‘air pollutant’ a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades.” (pg. 12)

“EPA itself has repeatedly acknowledged that applying the PSD and Title V permitting requirements to greenhouse gases would be inconsistent with—in fact, would overthrow—the Act’s structure and design.” (pg. 17)

“The fact that EPA’s greenhouse-gas-inclusive interpretation of the PSD and Title V triggers would place plainly excessive demands on limited governmental resources is alone a good reason for rejecting it; but that is not the only reason. EPA’s interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ …we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (pg. 19)

“The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text. Moreover, in EPA’s assertion of that authority, we confront a singular situation: an agency laying claim to extravagant statutory power over the national economy while at the same time strenuously asserting that the authority claimed would render the statute ‘unrecognizable to the Congress that designed’ it. Since, as we hold above, the statute does not compel EPA’s interpretation, it would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.” (pg. 19-20)

“We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the Agency’s interpretation of the triggering provisions. An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always ‘give effect to the unambiguously expressed intent of Congress.’ It is hard to imagine a statutory term less ambiguous than the precise numerical thresholds at which the Act requires PSD and Title V permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the ‘bounds of its statutory authority.’” (pg. 21)

“Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, ‘faithfully execute[s]’ them. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.” (pg. 23)

“In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches—and to decide, on an ongoing basis and without regard for the thresholds prescribed by Congress, how many of those sources to regulate. We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” (pg. 23)

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