JUDGES TO HEAR CLEAN POWER PLAN CASE:–21gh.,b38
The event will likely serve as an important barometer for the legal status of the regulation, since the Supreme Court’s stay of the rule issued in February did not explain the justice’s reasoning.
The case is massive, with more than 100 litigants involved on the various sides and more than 4,000 pages of briefs filed before the argument. Even though the final fate of the regulation will almost certainly rest with the Supreme Court, the case being heard Tuesday is nonetheless a critical test.
A group of conservative states, energy companies and business interests say the rule is illegal under the Clean Air Act and violates states’ rights under the Constitution, among other arguments. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.
The EPA and its supporters say the Clean Air Act and the Constitution clearly allow the rule. “The Clean Power Plan complies with the many restraints that the Clean Air Act places on EPA’s authority to regulate power plants,” said Ricky Revesz, director of New York University’s Institute for Policy Integrity.
The oral arguments are likely to focus on a handful of issues: whether the compliance mechanisms qualify as the “best system of emission reduction” under the Clean Air Act, whether the act expressly forbids carbon dioxide regulation in the way that the EPA is doing it, whether the EPA is violating the Tenth Amendment to the Constitution and how much deference the agency should get to interpret the law.
Conservative states, energy companies and business interests say the rule, mandating a 32-percent cut in power sector emissions by 2030, is an illegal and unconstitutional power grab by the Obama administration. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.
The case, West Virginia v. EPA, is unusual in a number of ways. The Supreme Court put a hold on the rule’s enforcement, an unprecedented action, in February, just before Justice Antonin Scalia died. Nearly all of the Circuit Court’s judges will hear the case, instead of a three-judge panel. Of the 10 judges hearing the case, six were appointed by Democratic presidents. Chief Circuit Court Judge Merrick Garland won’t attend the arguments and has recused himself from all cases after Obama nominated him for the Supreme Court.
The decision is almost certain to be appealed to the Supreme Court. But since the GOP-controlled Senate has refused to confirm Garland, the high court has only eight justices, leaving the possibility of a tie. If that happens, the D.C. Circuit Court’s ruling would stand. The appeals court’s decision — and, ultimately, that of the Supreme Court — is likely to have a major impact on both President Obama’s environmental legacy and international climate work.
The rule was the centerpiece of Obama’s pledge under the deal, which aims to reduce global emissions. But the deal’s opponents have warned other countries that the American commitment could fall short if the Clean Power Plan is invalidated. “The Clean Power Plan is on shaky legal ground,” Sen. Jim Inhofe (R-Okla.), said in a statement when the U.S. joined the deal this month.
“Environmental groups and industry agree that the U.S. commitments made under the Paris agreement cannot be met with regulations and would require legislation from Congress that will never pass.” Even if the rule doesn’t survive, Obama is likely to go down as the first president to take dramatic action on climate change.
“No matter what happens with the Clean Power Plan, I think his legacy is cemented as the first climate president. I don’t think there’s any way around it,” said Jody Freeman, a Harvard Law School professor who previously advised the Obama White House on climate change. Nevertheless, if the courts approve the rule, it would be a big win for Obama. “You wind up with two-thirds of the economy’s emissions being regulated,” Freeman said. “That, to me, would be an enormous accomplishment.”