The Environmental Protection Agency appears in these excerpts chiefly as an example of power Congress has handed to the executive branch. Bob Zadek introduces the agency during a discussion of its coal regulations, describing the EPA as using the Clean Air Act, which he calls a massive piece of federal legislation by which Congress has ceded enormous power to the executive, specifically to the Environmental Protection Agency Matt Zwolinski on Bleeding Heart Libertarianism (2014). Sam Batkins, a director of regulatory policy at the American Action Forum, makes the same point in general terms: Congress over the years has delegated a lot of power to EPA, which is one reason why EPA is a fairly powerful regulatory agency A Lame Duck’s Last Stand (2017). John Judis, discussing socialism and capitalism, offers a different account of the agency’s origin, saying that in 1971 you get the Environmental Protection Agency, and that it exists because decisions left simply to the market produce what economists call externalities — pollution from coal in West Virginia blowing up to Vermont, New Hampshire and Maine, where people start getting asthma Is Socialism Still a Dirty Word? (2021).
The coal regulations and the “war on coal”
Zadek devotes a long segment to the EPA’s carbon rules. He says the news that week had been what is going on over at EPA, and that the agency, using the Clean Air Act, had just promulgated massive regulations that have been called the “war on coal” — a phrase he attributes to the coal mining and coal burning states and calls a bit of hyperbole used effectively Matt Zwolinski on Bleeding Heart Libertarianism (2014). He states that the rules were then in draft form and would be finalized next year. He describes the alleged problem with coal as that coal emits carbon, and says carbon causes what used to be known as global warming, which after a cold winter lost its appeal and is now simply climate change.
Zadek’s central objection is about scale and incidence. He argues that whatever the United States does as a country will have a de minimis effect and almost no effect on the planet, because the country accounts for a small and declining portion of carbon emissions. He compares the effort to federal regulation of showerhead size and toilet flush volumes, and to driving a Prius, calling these feel-good activities with no long-term planetary effect. He says that if the country got rid of all its coal-burning plants, the effect on climate change over a 20 or 30-year period would be less than one-tenth of one degree of change, and that what we are doing is pointless unless the rest of the world goes along. But he adds that it is not without effect: the EPA plan will incrementally harm Americans and will profoundly affect the poor negatively, because most of the cost of these regulations will fall upon the people least able to afford it.
The episode then plays recorded clips. In one, Barack Obama says that a year earlier he had directed the Environmental Protection Agency to build on the efforts of many states, cities and companies and come up with common-sense guidelines for reducing dangerous carbon pollution from power plants, and that the proposed guidelines would cut down on carbon pollution, smog and soot that threaten the health of the most vulnerable Americans, including children and the elderly. In another, Joe Manchin says coal state lawmakers are speaking out and that President Obama has overstepped his authority by imposing strict new emission limits on power plants, and that Senator Rand Paul says the administration is caving to extremists. Rand Paul, in his own clip, says it shows a lack of balance and that environmental extremists are really guiding the policy of this administration, comparing it to the Keystone Pipeline, which he says can create tens of thousands of jobs. A further Manchin clip raises reliability of the grid — whether people will have dependable power when they turn their cooling down, and what would have happened in the polar vortex without reliability in the system, with the frail, the elderly, the young and the poor most at risk, and without even taking into consideration whether you can afford it Matt Zwolinski on Bleeding Heart Libertarianism (2014).
Judicial deference and the EPA
In a separate episode on the Supreme Court, the EPA figures as a measure of a nominee’s deference. Bob Zadek asks Ilya Shapiro whether Judge Garland is one of those judges who does not prefer an activist approach. Shapiro, described by Zadek as a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, answers that Garland does not go out of his way to make a name for himself and does not write big, bold, radical opinions, but does defer to the government as much as possible, whether you are talking Environmental Protection Agency, law enforcement, or the National Labor Relations Board Ilya Shapiro on the Supreme Court in the Balance (2016). Shapiro adds that in that sense Garland being a so-called moderate might be worse than a so-called progressive radical. The exchange is brief and the EPA is one item in a list; the excerpt states no EPA case, rule or holding.
Delegation and the regulatory state
Sam Batkins supplies the quantitative frame. He says regulators approved roughly 3,600 federal rules last year, of which roughly 100 are considered major, meaning an annual economic impact of at least $100 million or more. Asked who enforces them, he names the usual suspects, beginning with the Environmental Protection Agency, and repeats that Congress over the years has delegated a lot of power to EPA. He then lists the typical alphabet soup of regulators from FCC to SEC to CFTC to CFPB, and says that counting all the regulators comes to something like 52 different regulatory agencies at least, excluding sub-agencies A Lame Duck’s Last Stand (2017). The episode’s announced subject is midnight regulations, and Zadek’s framing is that Americans are governed by what are in effect laws that have not been enacted by anyone they voted for; the excerpt breaks off as Zadek is about to ask Batkins for the 30,000-foot view of regulations, so the discussion of delegation and the REINS Act does not appear in the excerpt beyond its heading.
The EPA as an element of socialism
John Judis places the agency in a historical argument rather than a regulatory one. He says socialism can develop within capitalism and is not necessarily contrary to markets or private property, and that the socialist aspects of an economy could begin to predominate over the capitalist ones. As evidence of coexistence he points to government intervention and regulation, unions, Medicare and the Affordable Care Act, and public utilities in the 1920s. The environment is one of his cases: he asks why the Environmental Protection Agency exists, answers that leaving decisions to the market produces externalities such as coal pollution traveling from West Virginia to Vermont, New Hampshire and Maine and people getting asthma, and dates the agency to 1971. He notes that private insurance and private energy companies still exist, so the two systems coexist Is Socialism Still a Dirty Word? (2021).
Across episodes: the same question in different registers
The excerpts do not show a developing argument about the EPA so much as four separate uses of it. Zadek in 2014 treats the agency as the author of costly coal rules and stresses the burden on the poor; Shapiro in 2016 treats it as one of the bodies to which a Supreme Court nominee defers; Batkins in 2017 treats it as the foremost recipient of delegated congressional power; and Judis in 2021 treats its creation as an instance of socialism introduced within capitalism. The only thread that runs through more than one episode is delegation — Zadek’s claim that Congress has ceded enormous power to the agency and Batkins’s statement that Congress has delegated a lot of power to EPA — and the excerpts show no change in that claim between the two treatments, only a shift from a specific rulemaking to the general regulatory count.
What the sources do not cover
The excerpts do not describe the EPA’s statutory structure, its administrator, its budget, or any litigated case naming the agency; Garland’s deference is asserted without an EPA decision attached to it. The coal rules are discussed only as draft regulations expected to be finalized the following year, with no final rule, vote, or court challenge reported. The 1971 founding is stated by Judis without a statute, and the excerpts do not say what law created the agency or which branch signed it. Nothing in the excerpts reports the outcome of the regulations, the fate of the Garland nomination, or any subsequent EPA action.