The Supreme Court has declined to review a lower court opinion striking down the Bush Administration’s regulation of mercury.  This isn’t a huge surprise since the Obama Admimistration indicated that the lower court opinion was consistent with its own regulatory policy, leaving only the industry to seek revieew.  The lower court opinion is one of a spate of opinions in the last year or so finding that the Bush Administration’s actions were inconsistent with clear statutory language.  Frustrated by their inability to get congressional action on market-based regulation, the Administration chose to pursue these initiatives along with some plain deregulation through the administrative system — only to have the courts point out that the existing statutes provided a very different mandate.   There’s a lesson here for the Obama Administration as well.  There’s a limit to how much reform can be accomplished through administrative action.  The Chevron doctrine gives agencies some leeway in statutory interpretation, but there are limits.  In the end, there’s no substitute for congressional action.

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