{"id":1074,"date":"2012-03-27T21:08:11","date_gmt":"2012-03-28T01:08:11","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1074"},"modified":"2015-10-02T15:23:41","modified_gmt":"2015-10-02T15:23:41","slug":"the-wages-of-obstruction","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/03\/27\/the-wages-of-obstruction\/","title":{"rendered":"The Wages of Obstruction"},"content":{"rendered":"

By Yevgeny Shrago<\/p>\n

<\/em>The Environmental Protection Agency proposed a\u00a0rule<\/a>\u00a0today that would effectively end the construction of coal-fired power plants in the United States. \u00a0The rule, known as a new sources performance standard, will limit the carbon dioxide emissions per megawatt of electricity produced to 1000 pounds of carbon dioxide, nearly half the the coal plant average of 1,768, rendering it basically\u00a0impossible<\/a>\u00a0to build a coal power plant without extremely advanced (and probably federally subsidized) scrubbing technology. \u00a0Nuclear power, natural gas and renewables easily fall below these limits. \u00a0Although\u00a0some<\/a>\u00a0pundits<\/a>\u00a0are skeptical, if the screaming from industry is any indication, this rule will have some teeth, though it will have no effect on current plants or those slated to be finished this year. \u00a0There are at least three things relating to Congressional obstruction to take away from such an aggressive rule.
\n
\nFirst, elections matter. \u00a0Anyone that sees the Obama Presidency\u2019s first term as a disappointment full of compromises, surrenders to the Republicans, and general betrayal of the President\u2019s election message overestimates the President\u2019s influence over even a friendly Congress and underestimates the true source of presidential power: regulation. \u00a0An EPA headed by a Democratic appointee can pass such aggressive rules, while an EPA headed by a Republican appointee may try to\u00a0deny<\/a>\u00a0that carbon dioxide can be regulated under the Clean Air Act at all. \u00a0Such decisions are recapitulated in every policy area and give the President tremendous power in guiding national policy.<\/p>\n

Second, the Republicans may have made a huge mistake by refusing to cooperate withvarious<\/a>\u00a0centrist<\/a>\u00a0cap and trade plans that were put forward in the past. Congressional action, even if it were much milder than what environmentalists demand, would have pulled the Obama administration\u2019s teeth on this topic and cost him the moral high ground. \u00a0Instead, a second-term Obama, who will likely be clinging to either a tenuous majority in Congress or face a numerically-strengthened opposition, will likely continue using the EPA to do the environmental regulation that America needs. This Obama will know that he has nothing left to gain from cooperation and therefore will probably not hesitate to use the EPA\u2019s considerable regulatory power. \u00a0Republican obstruction may give us a better environmental policy than their cooperation.<\/p>\n

Third and relatedly, Congressional obstruction leads the President to aggrandize his own power. \u00a0A bold carbon regime from the EPA will give the administration control over ever larger portions of the economy, one that easily exceeds the nondelegation doctrine concerns that prevented the FDA from classifying tobacco as a drug in\u00a0FDA v. Brown & Williamson<\/a>. \u00a0However, with a decision in Massachusetts v. EPA that carbon dioxide is a pollutant for purposes of the Clean Air Act on the books, the odds are unlikely that the Court will curtail the president\u2019s power. \u00a0Congress could amend the Clean Air Act, but here the obstruction dynamic is in Obama\u2019s favor: only 41 Senators must support his policies for the amendment to fail, not to mention the potential for Obama to veto the bill and force a showdown. \u00a0These things are a ratchet: no President will give back the power he holds without a fight. \u00a0As Jack Goldsmith points out in his book \u201cThe Terror Presidency\u201d, albeit in a different context, a compliant Congress often curtails Presidential power more than when the President is acting on his executive prerogative alone. \u00a0By failing to cooperate, the Republicans may have lost the game on environmental regulation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Yevgeny Shrago The Environmental Protection Agency proposed a\u00a0rule\u00a0today that would effectively end the construction of coal-fired power plants in […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[2],"tags":[],"class_list":["post-1074","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-hk","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1074","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1074"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1074\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1074"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1074"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1074"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}