Brian Potts is a partner in the Madison law offices of Foley and Lardner and a frequent contributor of orthodox opinion on the culture of entrepreneurial regulation. Last week he turned up on the Politico web site cheerleading for the Obama administration to assert authority that—unbelievable as this may seem—it hasn’t already claimed.
Mr. Potts, who actually does know a thing or two notwithstanding his mindless parroting of the party line on global warming, says an obscure provision of the Clean Air Act pretty much allows the Environmental Protection Agency to order states to do anything it wants them to do, so long as two conditions are met and guess what? The Paris climate gabfest, according to his reasoning, produced a document that despite being legally meaningless, meets them.
The provision Mr. Potts hopes to see activated involves reciprocal agreements to regulate alleged pollution back and forth between sovereign countries, and our first question is what the H— is language like that doing in the Clean Air Act, but never mind.
Our second question is, since the Paris agreement does not compel anyone to do anything in terms of actual emission reductions, why would anybody think it has any bearing on the application of a totally separate law in a single country, but never mind that either.
What matters is that 345 days from now, the Obama administration becomes nothing more than a noxious stain on America’s history, and any rule making the EPA initiates between now and then will be either incomplete or awash in litigation.
Mr. Potts ought to know this. His scary scenario is unlikely to play out as designed.