Striking
down Obama’s climate legacy has its day in court, by Marita Noon, 10/6/16
President Obama’s flagship policy on
climate change had its day in court on Tuesday, September 27 in the U.S. court
of appeals for the District of Columbia.
The international community is
closely watching; most Americans, however, are unaware of the historic case
known as the Clean Power Plan (CPP) — which according
to David Rivkin, one of the attorneys arguing against the plan: “is not just to
reduce emissions, but to create a new electrical system.”
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).
The court, which is already fully
briefed on a case before hearing the oral arguments, typically allows a maximum
60-90 minutes to hear both sides and occasionally, with an extremely complex
case, will allow two hours. The oral argument phase allows the judges to
interact with lawyers from both sides and with each other. However, for the
CPP, the court scheduled a morning session focusing on the EPA’s authority to
promulgate the rule and an afternoon session on the constitutional claims
against the rule — which ended up totaling nearly 7 hours. Jeff Holmstead, a partner with Bracewell Law, representing one of the lead
challengers, told me this was the only time the full court has sat all day to
hear a case.
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.”
Judge Thomas Griffith, a Bush
appointee, questioned: “Why isn’t this debate going on in the floor of the
Senate?” In a post-oral argument press conference, Senator James Inhofe
(R-Okla.) pointed out that the debate has been held on the Senate floor in the
form of cap-and-trade legislation — which has failed repeatedly over a 15-year
period. Therefore, he said, the Obama administration has tried to do through
regulation what the Senate wouldn’t do through legislation.
“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.”
Judge Karen LeCraft Henderson, a
Bush appointee, concluded:
“You have given us all we need and more, perhaps, to work on it.”
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.”
But the case has its proponents,
too, and they, also, left feeling optimistic. In a blog post for the
Environmental Defense Fund, Martha Roberts wrote
about what she observed in the courtroom: “The judges today were prepared and
engaged. They asked sharply probing questions of all sides. But the big news is
that a majority of judges appeared receptive to arguments in support of the
Clean Power Plan.” She concluded that she’s confident “that climate protection
can win the day.”
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.
The
author of Energy Freedom, Marita Noon serves as the
executive director for Energy Makes
America Great Inc., and
the companion educational organization, the Citizens’ Alliance for Responsible
Energy (CARE).
She hosts a weekly radio program: America’s Voice
for Energy—which
expands on the content of her weekly column. Follow her @EnergyRabbit.
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