Over at Volokh, some discussion about the EPA fining oil companies for failing to use cellulosic ethanol, a product which does not exist. Companies have been paying the fine. I’m wondering how this is constitutional, however. Can Congress claim the power to create a regulation under the commerce power that is impossible to comply with? Can Congress create any regulation that is impossible to comply with? As AEI noted, “Congress might as well have mandated oil companies blend gasoline with rainbows and unicorn sweat.”
My guess is, in this case, the fine is cheaper than fighting it.