The Administrative State Moves To Show Who's Boss On Energy Policy

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  • Last Thursday, June 30, the Supreme Court issued its decision in West Virginia v. EPA, holding that, absent a further explicit statute from the Congress, the EPA did not have the authority to orchestrate its planned fundamental restructuring of the electric power generation sector of the economy.

  • More generally, the Supreme Court stated that in cases involving “major questions,” including regulations that affect large portions of the economy, the government must demonstrate “clear congressional authorization” to support a sweeping effort to regulate.

  • Do you think that such a Supreme Court decision might cause the various regulatory bureaucracies to slow down and reconsider a little before plowing ahead with other dubious plans for fundamental economic restructurings?

  • That’s not how these bureaucracies work. And such is most particularly the case with regard to regulators of the energy sector, sometimes known as “climate change” arena.

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How To Think Like A Liberal Supreme Court Justice

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  • Probably you think that the justices sitting on the U.S. Supreme Court must be among the most intelligent people in the country. Granted, the mainstream press spends a lot of time denigrating the intelligence of the conservative justices. But surely then, the liberal justices must be really, really smart.

  • Consider Justice Elena Kagan. She was the Dean of the Harvard Law School. Then she became the Solicitor General of the United States. That’s the person in charge of arguing the government’s positions in the Supreme Court. You need to be really smart to do that job.

  • So if you’re looking for someone who can teach you the thinking processes of the very smartest of the smart, there is no one better to look to than Elena Kagan.

  • With that in mind, let’s take a closer look at Justice Kagan’s dissent on behalf of the three liberal justices in the case of West Virginia v. EPA that came out just last week.

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There Are Two Fundamentally Irreconcilable Constitutional Visions

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  • It’s been a momentous couple of weeks at the Supreme Court. As usual, they saved the big cases for the end. This year the big three were Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2).

  • All three cases were decided 6-3 along ideological lines.

  • These cases involved the most basic issues of what the Constitution is and how it is to be interpreted. On those issues there is virtually no hope of one side ever convincing anyone from the other side. There just are two fundamentally irreconcilable visions of how this should work.

  • The two visions can be summarized in just a few sentences each:

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And The Winner Is, Germany!

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And The Winner Is, Germany!

  • Just over six months ago, in December 2021, I asked the question that was on the tip of the tongue of everybody who follows the subject of the ongoing massive “green” transition to fossil-fuel-free energy. Actually, that’s a lie. The question I asked was not on the tip of the tongue of everybody who follows the subject, or even of most of the people who follow the subject, for reasons that to me are completely inexplicable.

  • The question was : “Which Country Or U.S. State Will Be The First To Hit The Green Energy Wall?”

  • The candidates that I nominated in that post as potentially the first to hit the “green energy wall” were California, New York, the UK and Germany. At the time, I thought it was obvious that one of those jurisdictions would hit the wall sooner than almost anybody expected. Indeed, I was quite bold in the short time frame that I predicted:

  • A prolonged period of unfavorable weather (calm and overcast) could cause a serious energy crunch to hit one or both of Germany or the UK as soon as this winter. Or they could get lucky and go another year or two.

  • Now here we are in June 2022, and I think it’s hard to deny that Germany has in fact hit the “green energy wall.”

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Candidate For Worst Supreme Court Justice Ever: Harry Blackmun

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  • Yes I know, the competition for the title of Worst Supreme Court Justice Ever is stiff. A decent rogue’s gallery of candidates might include , for example, the likes of William O. Douglas, Earl Warren, and William Brennan. There may be a good case to be made for any of those, and plenty more.

  • But none of them has the distinction of having authored Roe v. Wade. So for today, permit me to make the case for Blackmun.

  • Blackmun did not author any large number of important Supreme Court decisions. One might surmise that his colleagues did not trust him with the tough ones. If you wonder if that might be true, try reading the Roe decision.

  • In any event, the Roe decision by itself is a strong qualification for the Worst Justice Ever award.

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Progressive Utopian Vision Versus The Constitution

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  • It’s already been a bad week in the Supreme Court for progressive shibboleths. Just today, the key provision of New York’s gun restriction regime — under which the authorities had discretion to deny you a gun permit if they thought the reason you gave for wanting one was not good enough — got struck down under the Second Amendment.

  • For what it’s worth, I’ve long thought that that provision was obviously unconstitutional, and that the Second Circuit’s decision upholding it was not a good faith application of existing Supreme Court precedent. In practice, the authorities denied almost all requests for gun permits except from politicians, big political donors (to Democrats) and celebrities. The decision has caused a good deal of wailing and gnashing of teeth over in the precincts of the Left.

  • And there’s plenty more to come. Without doubt you are already familiar with the case involving Mississippi’s abortion law, likely to spell the end of the long reign of Roe v. Wade.

  • But today I’m going to focus on another high-impact case, West Virginia v. EPA. This one was argued back in February, but the decision still has not been issued. They tend to issue the decisions in the most important cases at the very end.

  • In the West Virginia case, there is significant potential that the Supreme Court could significantly rein in the regulatory assault that the Biden Administration is currently waging against the fossil fuel industries, and maybe some other regulatory assaults as well.

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