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SCOTUS Stops Obama’s Clean Power Plan

SCOTUS Stops Obama’s Clean Power Plan

Once again the judiciary stops Obama’s runaway regulatory state.

Yet another Obama administration initiative was halted by the U.S. Supreme Court this week. The Clean Power Plan (CPP) was a far-reaching effort by the Environmental Protection Agency (EPA) to control greenhouse gas emissions from coal-fired power plants under the Clean Air Act (CAA). If implemented, the CPP would have closed hundreds of coal-fired plants across the country and increased the production of wind and solar power, which are significantly more expensive to produce.

The CPP was challenged in  court by energy companies, industry groups, and a coalition of 29 states, led by West Virginia. The litigants filed multiple applications for a stay, which would block the CPP from being implemented while the case proceeded.

Hitting the “pause” button

A three-judge panel on the D.C. Circuit Court of Appeals unanimously voted to deny the stay last month, and it was appealed to the Supreme Court, which, in a 5-4 ruling with the liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) voting against, agreed to grant the stay. A stay is best understood as hitting the “pause” button, and not the final step in the litigation, but it does prevent the CPP from being implemented while the case proceeds.

This case was the first time the Supreme Court had granted a request to stay a federal regulation while it was being reviewed by a federal appeals court. As Jonathan Adler at the Washington Post noted, the ruling indicates that the Court has concerns about the EPA’s legal authority to impose the CPP, which “is based on a fairly aggressive reading of the relevant provisions of the Clean Air Act, most notably Section 111.”

In a follow-up article at the Post, Adler described the legal challenges as attacking the EPA not just for improperly exercising their legal authority, but as arguing that the EPA lacked any authority to impose the CPP in the first place:

It is not only the most ambitious climate-related initiative undertaken by the EPA, but it also relies upon unprecedented assertions of legal authority. And, to be clear, by “unprecedented” I mean just that — without precedent. This is not the same thing as saying that a specific argument or action is unlawful or wrong, only that it raises new legal questions that courts have not had cause to answer before.

The Court’s order was extremely brief, and offered no explanation for their decision, but a plausible answer may be found in another case challenging an EPA regulation.

The EPA has “pulled this stunt several times.”

Michael Greve, a law professor at George Mason University, notes that the EPA has a history of pulling stunts like this, overstepping their legal authority and demanding that energy companies undergo “massive planning and investment decisions” to comply with burdensome regulations while the litigation wends its way through the court system.

Greve wrote a blog post citing the Michigan v. EPA case, another case dealing with the EPA’s efforts to regulate fossil-fueled power plants, and opines that the outcome in that case may have provided a persuasive argument for the states challenging the CPP.

In Michigan, the Supreme Court eventually ruled that the EPA had in fact violated the CAA and remanded the case back to the D.C. Circuit, but the regulation in question had not been stayed during the years of litigation. This allowed the EPA to argue to the D.C. Circuit that most plants were already in compliance with the regulation or nearly there. As a result, the D.C. Circuit allowed the regulation to remain in effect, even though the Supreme Court had said that it was unlawful.

Basically, the EPA was allowed to force power plants to incur substantial compliance costs — an estimated $10 billion a year — before the Court ruled the regulation was unlawful, and then they got away with it because the damage was already done.

West Virginia Attorney General Patrick Morrissey told the New York Times, “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”

Another embarrassment for the Obama administration

The Supreme Court’s stay blocking the implementation of the CPP is the latest in a long line of court losses for Obama. As the FiveThirtyEight blog observed last June, the Obama administration has the lowest winning percentage of any president — less than 50 percent — going all the way back to Truman.

Image via FiveThirtyEight.

Past losses for the Obama administration include a number of other environmental regulations, property rights cases, labor regulations, and the DAPA executive order granting amnesty to illegal immigrants by protecting them from deportation. There have also been a number of cases where the Supreme Court ruled unanimously against Obama.

“When the administration loses significant cases in unanimous decisions and cannot even hold the votes of its own appointees — Justices Sonia Sotomayor and Elena Kagan — it is an indication that they adopted such an extreme position on the scope of federal power that even generally sympathetic judges could not even support it,” said Ilya Somin, a constitutional law professor at George Mason University.

This ruling also jeopardizes the climate change pact that the United States signed last December, because the provisions of the CPP were used by the Obama administration to prove that our country would be taking significant actions in restricting power plant emissions, and the other nations should follow suit in agreeing to limit their emissions.

Follow Sarah Rumpf on Twitter @rumpfshaker.


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legacyrepublican | February 10, 2016 at 6:36 pm

EPA Moto: Beatings will continue until moral improves

This is also a lose for the Obama appointed judges on the current D C Court Of Appeals.

Not clean power, but displaced waste (e.g. Chinese sludge fields, lakes). Only the drivers are green in the sense of nominally clean and renewable. The technology is marginally available, toxic to flora and fauna, and the low density converters are disruptive of the environment on large scales during deployment, operation, and recovery, which necessitates industrial exploitation of eminent domain (e.g. environmental lobbying), special exemptions (e.g. endangered species), and either toxic persistent technology (e.g. batteries) or low, intermittent availability.

This could all be fixed by Congress changing the laws or cutting the budget rather than the courts. If only we had the Republicans in control of the Senate and the House…wait, what? And a veto can be overridden.

    Milhouse in reply to TX-rifraph. | February 12, 2016 at 2:12 pm

    A veto can not be overridden without the votes of 12 D senators and 44 D reps. How exactly do you suggest Ryan and McConnell obtain those D votes? How do you imagine anyone could get them? Do you think you could, were you in their position? It’s impossible, and therefore 0bama’s vetoes cannot be overridden, except on those few issues where there’s significant division within the Ds (and near unanimity within the Rs).

I saw this yesterday on Why hasn’t this been widely reported by American media?
I’ve seen this a lot (learning about news from the US) since I stared following their English language website.

The current system is broken if the EPA can force companies to comply with illegal regulations. It is too risky to break the regulations will fighting the EPA. In effect, the EPA is able to exceed its legal authority and impose its will in bad faith.

There should be a new law that automatically stays all contested new EPA regulations until there is a res judicata. This law would prevent the EPA from exceeding its authority again. I would also love to see the EPA officials become personably liable for situations like the Michigan case where the agency imposes great costs will knowingly exceeding its authority.

    Arminius in reply to nebel. | February 11, 2016 at 6:37 pm

    If Congress were serious they would also strip EPA officials of immunity and make it a felony for them to conspire with so-called environment groups to take them to court. And even worse, pay these groups to sue them so they can get an order to regulate something they don’t have the statutory authority to regulate. Then the EPA can pretend their hands are tied. They have to invent and impose new regulations because a court ordered them to do it.

    Of course, they wanted the new regulatory all along.

    But since Congress hasn’t done anything along these lines they clearly are not serious.

Good. Another reason for all GOP voters to vote for Cruz. He will definitely appoint true strict Constitutionalist Justices to the Supreme Court, no doubts not questions, he will fight for his nominees and most importantly he is the only candidate left who can BEAT TRUMP. trump is leaving scorched earth behind him, Rubio cannot beat trump, but he can be on a Cruz ticket.