"And daddy won't you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I'm sorry my son, but you're too late in asking
Mister Peabody's coal train has hauled it away"
The defects in the Proposed Rule transcend political affiliations and policy positions and cut across partisan lines. The central principle at stake is the rule of law – the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission. The Proposed Rule should be withdrawn. It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority. Indeed, the Proposed Rule raises serious constitutional questions.
To be sure, those who believe, as I do, that the global challenge of climate change is one we need to confront in every responsible way available to us, might be tempted to take just about any first step toward meeting that challenge. But this first step? It’s a first step that, by the account of those who urge it, barely gets us anywhere – and does so by putting much of our legal framework at risk, not to mention imposing serious risks of electricity blackouts and stranded workers and significant harm to whole sectors of our national economy. No, that’s not something I can just sit by and remain silent about. An old and wise maxim has it that when one needs to cross a chasm, leaping halfway (or, as in this case, a tiny fraction of the way) is not likely to represent any progress at all. Having incurred the harms that follow hitting the bottom of the chasm, one might be hard-pressed to climb back up and try again.
So too here. When I make such a fuss about the rule of law and the importance of obeying the Constitution in the means we choose to approach even this massive problem, it’s not because I underestimate the problem; it’s because I deeply believe that the solution we try shouldn’t be one that tramples on our constitutional system...That’s why I have invoked such vivid metaphors as the one I used when I told Congress on March 17 that burning the Constitution must not become part of our national energy policy.
I knew when I undertook this challenge that many of my closest friends, and many with whom I have been in the trenches fighting for environmental sanity ever since teaching what I believe was the first environmental law course in the Nation, would take me to task for saying what I have said about this matter. So be it.
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
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