There’s an ancient Chinese curse: “May you live in interesting times.” That thought occurred to us as we contemplated yesterday’s Supreme Court decision striking down a proposed regulation would have drastically reduced the use of coal in power plants.
The regulation had been adopted by the Obama Administration as the Clean Power Plan, discarded during the Trump Administration, and now the Biden Administration had said it would adopt it again. None of the three administrations asked Congress to enact a law on the subject. You can read details on the decision here, from SCOTUSblog.
We’re not terribly concerned with the impact the decision will have on the EPA, but we did wonder about Alcohol & Tobacco Tax & Trade Bureau.
In our 30-plus years of reading regulations issued by TTB and its predecessor agency, Alcohol, Tobacco & Firearms, one thing has been consistent: a careful recitation of Congressional authority for whatever action the agency was taking. So we thought the decision would have little, if any, impact on TTB.
But good reporters know what they don’t know, and so we reached out to Robert M. Tobiassen, president, National Association of Beverage Importers and former chief cousel for TTB. He’s not so sure. Here’s what he told us:
“The Chief Justice applied the “whole question” principle (one I have yet to find in the Constitution) rather than the Chevron test, which I assumed was at stake and at risk in this case, that give deference to agency regulations promulgated after the opportunity for notice and comment rulemaking.
“According to the Chief Justice, the whole question approach applies where the agency regulation under challenge is a really big deal, nationwide impact, comprehensive action. In this case, the court looks to whether the statute expressly allows that big action. Agency deference as to reasonableness and notice and comment rulemaking is nowhere to be found.
“The fundamental problem with the opinion today, in my modest view, is it undercuts more than a century of the accepted role and function of the Executive Branch agencies to implement, administer, and enforce the Federal laws. The bureaucracy exists in today’s modern world of topics that the Founding Fathers never thought about, and Congress does not have the time and expertise to learn everything and then write a very specific statute.
“For example, you may have read this week that two Members of the House introduced another ocean shipping bill. Essentially, this one would give container ships waiting to dock at a U.S. port, preferential berthing rights if their subsequent export manifest shows that the ship will be loaded with a large percentage of U.S. made goods. (This is a bit of an over simplification.) When one of the sponsors was asked how the preferential treatment would work, he said that he did not know but the agency could issue regulations to figure it out!!! I am not sure in today’s decision, the six conservative Justices would agree with his proposition.
“Anyway, a long answer to a short question. For TTB it is an unknown. For example, where in the FAA Act as enacted in 1935 do you find specific authorization for serving facts? The authority for this administrative ruling (not even a regulation) is section 205(e)(2).
“That subsection refers to regulations that will ‘provide the consumer with adequate information with respect to the identity and quality of the products.’ For wine, this means type of grape, wine treating materials, appellations of origin, and the like. It does not necessarily mean the equivalent of the FDA Nutritional Label,” Tobiassen said.