Investor Presentaiton
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Because Congress designed different parts of the statute
to operate differently, a broad view of one of its purposes
cannot drive the interpretive cart.
And if Section 111's proper construction leaves EPA
with too little power to respond to the serious issues
surrounding climate change, the solution is not
reinterpreting it with a purposivist bent. The answer is
the same as when Congress confronted the problem of
acid rain: When "policy considerations suggest that the
current scheme should be altered, Congress must be the
one to do it." Intel Corp. Inv. Pol'y Comm. v. Sulyma, 140
S. Ct. 768, 778 (2020); see also Fed. Power Comm'n v. La.
Power & Light Co., 406 U.S. 621, 635-36 (1972) (“[The]
need for federal regulation does not establish [agency]
jurisdiction that Congress has not granted."). For better
or worse, Congress designed Section 111 as a tool to
improve the performance of individual stationary sources,
not a springboard for market transformation.
III.
The Court Should Construe Section 111 To
Avoid Substantial Non-Delegation Questions.
Finally, while clear-statement canons and plain-text
constructions ask whether Congress delegated power in
the first place, the non-delegation doctrine demands that
Congress provide sufficient guidance for how agencies
should exercise it. Congress must make "fundamental
policy decisions" itself—“the hard choices." Am.
Petroleum Inst., 448 U.S. at 687 (Rehnquist, J.,
concurring in the judgment). So though agencies are a
reality of modern life, holding delegation within proper
bounds remains "vital to the integrity and maintenance"
of our constitutional order. Marshall Field & Co. v. Clark,
143 U.S. 649, 692 (1982); see also Gundy, 139 S. Ct. at 2133
(Gorsuch, J., dissenting).View entire presentation