Judge Richard Leon for Supreme Court

I wish!

Of course, under President Obama, there's not a snowball's chance that Judge Leon would ever be considered for the US Supreme Court. Kathleen Hartnett White reported today on the slapdown of the EPA by Judge Leon.

At last, a federal court has sharply rebuked the EPA for exceeding its statutory authority. On May 26, 2011, Judge Richard Leon of the federal district court for the District of Columbia ruled that the agency’s regulatory process cannot trump a clear Congressional mandate, nor override judicial authority to compel EPA’s compliance with the law.

The issue at stake is the statutorily [one-year] maximum timeframe for EPA’s final decision to issue a Prevention of Significant Deterioration air-quality permit, a fundamental authorization for large industrial sources such as power plants and refineries....

Thankfully, Avenal Power Center, L.L.C., an electric utility in California, was willing to stand up to the EPA. After waiting over two years on a permit for its planned state-of-the-art combined-cycle natural-gas-fired power plant, and before the EAB process had even begun, Avenal sued. It challenged EPA’s delay in granting the permit under section 165(c) of the CAA.

The EPA argued that, because they created an internal review board that added extra time to the approval process, they didn't have to comply with the deadline.

“How absurd!” responded Judge Leon. “It is axiomatic that an act of Congress that is patently clear and unambiguous — such as this requirement in the CAA — cannot be overridden by a regulatory process created for the convenience of the Administrator. . . . Administrators of regulatory agencies derive their power from Congress’s statutory enactments — not from their own discretionary regulatory pronouncements that are drafted for their assistance and convenience.”

...Judge Leon responded to the EPA’s claim that the statute’s one-year deadline was ambiguous with deft nonchalance: “Horsefeathers!” Calling the EPA’s argument “too clever by half,” he noted simply, “That dog won’t hunt.” Mark one for limited government under the rule of law.

...Permit timeframes may seem a humdrum matter, but it is through clever procedural maneuvering that agencies continually expand their powers well beyond the confines of their enabling statutes.... The administrative probity by which federal power is asserted makes all the difference between regulation by fiat a là Venezuela or limited government under the rule of law.

...The stakes are too high, and EPA’s recent actions far too legally questionable, not to challenge the agency. May Judge Leon’s stout riposte to the EPA be one of many decisions to come in what now may be over 500 lawsuits challenging EPA decisions over the last two years.

When Judge Leon is done wiping up floor with the EPA, there are plenty more agencies that could use some slapping around.