Striking Down Obama's Climate Legacy Has Its Day In Court
For those who haven’t followed the Environmental Protection Agency’s (EPA) rule, here’s a brief history that brings us to up to date:
- EPA published the final CPP rule in the Federal Register on October 2015.
- More than two dozen states and a variety of industry groups and businesses immediately filed challenges against it—with a final bipartisan coalition of more than 150 entities including 27 states, 24 trade associations, 37 electric coops, 3 labor unions, and about a half dozen nonprofits.
- On January 21, the U.S. Court of Appeals for the District of Columbia denied a request for a stay that would have prevented implementation of the rule until the court challenges were resolved.
- On February 9, the Supreme Court of the U.S. (SCOTUS), in an unprecedented action, before the case was heard by the lower court, overruled, and issued a stay that delays enforcement of CPP.
- The Court of Appeals was scheduled to hear oral arguments before a three-judge panel on June 2, but pushed them to September 27 to be heard by the full court—something the court almost never does (though for issues involving “a question of exceptional importance” procedural rules allow for the case to proceed directly to a hearing before the full appeals court).
One of the issues addressed was whether or not the EPA could “exercise major transformative power without a clear statement from Congress on the issue”—with the 2014 Utility Air Regulatory Group (UARG) v. EPA determining it could not. Republican appointee Judge Brett Kavanaugh noted that the UARG scenario “sounds exactly like this one.”
“Harvard law professor Laurence Tribe, one of Obama’s mentors,” writes the Dallas Morning News: “made a star appearance to argue that the Clean Power Plan is unconstitutional.”
The day in court featured many of the nation’s best oral advocates and both sides feel good about how the case was presented.
For the challengers (who call CPP “an unlawful power grab”), West Virginia Attorney General Patrick Morrisey, who along with Texas AG Ken Paxton, co-lead the case, reported: “We said (then) that we were looking forward to having our day in court on the merits. Today was that day. I think that the collective coalition was able to put very strong legal arguments forward, as to why this regulation is unlawful, and why it should be set aside.”
The Wall Street Journal (WSJ) summarized the session saying that stakeholders on all sides were left “parsing questions and reactions, and searching for signs of which way the judges are leaning.” U.S. News reported: “The judges repeatedly interrupted the lawyers for both sides to ask pointed questions about the legal underpinnings of their positions.”
The decision, which is not expected for several months, may come down to the ideological make-up of the court: 6 of the judges were appointed by Democrat presidents and 4 by Republicans. Though, according to WSJ, Obama appointee Judge Patricia Millet “expressed concern that the administration was in effect requiring power plants to subsidize companies competing with them for electricity demand.” She offered hope to the challengers when she said: “That seems to be quite different from traditional regulation.” Additionally, in his opinion published in the Washington Post, Constitutional law professor Jonathan Adler,stated: “Some of the early reports indicate that several Democratic nominees posed tough questions to the attorney defending the EPA.”
Now, the judges will deliberate and discuss. Whatever decision they come to, experts agree that the losing side will appeal and that the case will end up in front of the Supreme Court—most likely in the 2017/2018 session with a decision possible as late as June 2018. There, the ultimate result really rests in the presidential election, as the current SCOTUS make up will be changed with the addition of the ninth Justice, who will be appointed by the November 8 winner—and that Justice will reflect the new president’s ideology.
Hillary Clinton has promised to continue Obama’s climate change policies while Donald Trump has announced he’ll rescind the CPP and cancel the Paris Climate Agreement.
The CPP is about more than the higher electricity costs and decreased grid reliability, which results from heavy reliance on wind and solar energy as CPP requires, and, as the South Australian experiment proves, doesn't work. It has far-reaching impacts. WSJ states: “Even a partial rebuke of the Clean Power Plan could make it impossible for the U.S. to hit the goals Mr. Obama pledged in the Paris climate deal.” With Obama’s climate legacy at stake, the international community is paying close attention.
And Americans should be. Our energy stability hangs in the balance.