Expert: Health ruling could be used to challenge pollution rules

He writes:

But consider the following question:

Under
the Clean Air Act, the government has the authority to order a company
to install a pollution control device. Does use of this authority compel
a firm inactive in the market to become a market participant against
their will in violation of the Health Care ruling?

It might
seem, at first blush, that the statute authorizing such an order would
clearly exceed Congress’ newly circumscribed power to regulate
interstate commerce.

But Driesen’s post notes “there are many
signs that the ruling will not invalidate all of the many regulations
that compel action,” citing “significant doctrinal limits” in the
landmark ruling.

“The court said Congress may regulate what
individuals do, not what they do not do. The pollution control
requirement does regulate an ongoing activity, pollution producing
production, not inactivity, even if it does so by ordering a product
purchase,” he writes.

The lengthy post predicts the ruling won’t
be successfully used to knock down pollution rules, but adds that “this
new front on the regulatory battlefield will likely enrich a lot of
lawyers.”

However, the decision could influence regulation
indirectly, Driesen writes, even though he doesn’t think it creates
jeopardy for proscriptive rules.

It could prompt federal lawyers
to push agencies toward more flexible regulatory approaches like
performance standards and emissions trading, he argues.

“[G]overnment
lawyers’ instincts tend toward mollification on the margins, and one
can imagine them choosing the most flexible techniques possible, even
where technical limitations (like monitoring difficulties) make them
poor policy choices, to avoid an order to purchase a specific type of
device,” Driesen writes.