Investor Presentaiton
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against "the most pressing environmental challenge of our
time." JA.71 (quoting Massachusetts, 549 U.S. at 505).
It bears repeating: the D.C. Circuit's decision has no
limiting principle. Removing the "inside the fenceline"
limit for how EPA may exercise its delegated powers
allows the agency to fashion whatever “system” it chooses,
with the entire economy compelled to respond
accordingly. It could, for instance, bring demand-side
measures to the table-administrative-speak for limited
electricity use or other measures with significant
consequences for consumers. Rolling brownouts, closure
orders, and reconstructing power grids are in play. So too
caps and quotas for all emitters, including manufacturing
plants and private homes. EPA can pick economic
winners and losers among States and source types based
on its own preferences. In the lower court's view,
Congress intended all this—and maybe more.
Contrast this approach with other statutes that
expressly permit agencies to manage portions of the
economy. The Natural Gas Act authorizes FERC to
greenlight new natural-gas plants using the statutory
benchmark of whether they are "or will be required by the
present or future public convenience and necessity." 15
U.S.C. § 717f(c)(1), (e). The Clayton Act gives DOJ and
the FTC pre-approval authority over mergers and other
industry movements of capital, but charges them to focus
only on market shifts that "substantially... lessen
competition, or tend to create a monopoly." 15 U.S.C.
§§ 18, 18a. Even the Emergency Price Control Act did not
grant the unilateral discretion the majority handed EPA.
It tasked the Office of Price Administration with setting
"generally fair and equitable" prices and rents, but it
measured "generally fair and equitable” against prices
during a two-week period in 1941, and required the agencyView entire presentation