“After studying the only legal basis offered for the EPA’s [now former] rule, I concluded [in 2014] that the agency is asserting executive power far beyond its lawful authority. The Clean Power Plan would set a carbon dioxide emission target for every state, and the EPA would command each state, within roughly a year, to come up with a package of laws to meet that target. If the agency approves the package, the state would then have to impose those laws on electric utilities and the public. The agency would effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan. …

Even more fundamentally, the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not. …

Some defend the EPA’s power grab on the grounds that it has the potential of averting global disaster. They remind us that, to save the Union during the Civil War, Lincoln was willing to suspend habeas corpus without the congressional authorization the Constitution requires. Today, with the benefit of hindsight, even Lincoln’s decision looks more like an overreaction—akin to the Alien and Sedition Acts and the internment of Japanese Americans after Pearl Harbor—than a genuinely necessary response to an existential crisis.”

Originally published at WSJ on 22 December 2014 and afterwards here on 23 December 2014 at the Wyoming Mining Association.