Investor Presentaiton
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power, agencies would enjoy virtually limitless
hegemony.").
The majority also chased irrelevancies. It led with
skepticism of the whole major-questions enterprise.
JA.135 (referring to the "so-called" major-questions
doctrine with a lineage of “few" cases). Then it
emphasized EPA's charge to regulate power plants'
greenhouse gas emissions in some fashion. JA.147. Yet it
is one thing to say Congress spoke clearly to what and
whom EPA may regulate. JA.141; but see Massachusetts
v. EPA, 549 U.S. 497, 555-60 (2007) (Scalia, J., dissenting)
(disagreeing that the CAA includes greenhouse gas
emissions). It is quite another to find a clear statement for
how EPA may do so-particularly when the majority read
"how" to mean any method EPA deems necessary. See
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 427
(2011) (explaining that Section 111 does not give EPA a
"roving license"). Gonzales confirms this method-blind
approach cannot be right. Though the Attorney General
concededly has powers to fight drug diversion and certain
authority over physicians, the Court held he overstepped
in asserting a major new way of exercising anti-diversion
power over physicians without a clear textual statement
that he could. Gonzales, 546 U.S. at 259-68.
The sole potential candidate for a clear statement is the
phrase "best system of emission reduction," a subset of
the "standard of performance" definition in Section
111(a)(1). But that provision, like the rest of Section 111,
"is a wafer-thin reed on which to rest such sweeping
power." Ala. Ass'n, 141 S. Ct. at 2489. Even the majority
was only willing to call Section 111 “ambig[uous].” JA.214.
By definition, Congress does not speak clearly through
ambiguous text.View entire presentation