Read through Scalia’s dissent in EPA v. EME Homer City Generation, L. P., which he has read from the bench. He is not happy here. His opinion begins:
Too many important decisions of the Federal Govern ment are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress. With the statute involved in the present cases, however, Congress did it right. It specified quite precisely the responsibility of an upwind State under the Good Neighbor Provision: to eliminate those amounts of pollutants that it contributes to downwind problem areas. But the Environmental Protection Agency was unsatisfied with this system. Agency personnel, perhaps correctly, thought it more efficient to require reductions not in proportion to the amounts of pollutants for which each upwind State is responsible, but on the basis of how cost-effectively each can decrease emissions.
Today, the majority approves that undemocratic revi sion of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply ex tends cost-benefit analysis beyond the scope of the alleged gap.
Additionally, the majority relieves EPA of any obligation to announce novel interpretations of the Good Neighbor Provision before the States must submit plans that are required to comply with those interpretations. By accord ing the States primacy in deciding how to attain the gov erning air-quality standards, the Clean Air Act is preg nant with an obligation for the Agency to set those standards before the States can be expected to achieve them. The majority nonetheless approves EPA’s promul gation of federal plans implementing good-neighbor benchmarks before the States could conceivably have met those benchmarks on their own.
I would affirm the judgment of the D. C. Circuit that EPA violated the law both in crafting the Transport Rule and in implementing it.
And lol, Grant’s tomb:
In the example given by the majority, ante, at 21–22, when each of three upwind States contributes 30 units of a pollutant to a downwind State but the reduction required for that State to comply with the NAAQS is only 30 units, how will responsibility for that 30 units be apportioned? Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb. If the criterion of responsibility is amounts of pollutants, then surely shared responsibility must be based upon relative amounts of pollutants—in the major ity’s example, 10 units for each State.
And he “dissent[s].” Not respectfully.
Addressing the problem of interstate pollution in the manner Congress has prescribed—or in any other manner, for that matter—is a complex and difficult enterprise. But “[r]egardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its author ity ‘in a manner that is inconsistent with the administra tive structure that Congress enacted into law.’” Brown & Williamson, 529 U. S., at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988)). The major ity’s approval of EPA’s approach to the Clean Air Act violates this foundational principle of popular government.
I dissent.