Late in the day on Tuesday, the Supreme Court stayed enforcement of EPA's so-called "Clean Power Plan" rule, otherwise known as the biggest-in-history see-how-far-we-can-push-the-envelope-and-get-away-with-it power grab by EPA, which seeks to "transform" the means of generation of electricity in the U.S. and shut down the coal industry. That evening, I was asked to submit an op-ed to one of the mainstream outlets (USA Today) explaining the legal side of the Supreme Court's action. I stayed up late to write it, but needless to say, they never ran it. So it's a lucky thing for you that you read Manhattan Contrarian. Here is what I submitted:
In 1984 the Supreme Court, facing a barrage of challenges to complex regulatory initiatives from the federal agencies, announced in a case called Chevron that it would generally defer to the agencies in matters of interpretation of the scope of their powers. Big mistake. Chevron was catnip to the agencies, who have treated it as an invitation to search through their lengthy statutes to find some basis --any basis -- to expand their bureaucratic fiefdoms.
No agency has gone farther with wildly overreaching statutory interpretations, nor sought to seize unauthorized control of greater swaths of the economy, than EPA. For decades the Supreme Court calmly deferred while EPA went from mission creep to mission run, and then, with the advent of the Obama administration, to mission sprint. With each judicial success EPA was only incentivized to make its next power grab bigger and then yet bigger. The latest EPA usurpation is a Guinness Book Of World Records-worthy piece of bureaucratic chutzpah known euphemistically as the "Clean Power Plan" (CPP), a massive rule finalized last October.
Yesterday [Tuesday] the Supreme Court drew the line, and stayed enforcement of the CPP pending resolution of litigation brought by a legion of challengers that included electric utilities, energy producers, and some twenty-six states.
The Obama administration has publicly admitted that the intent of the CPP is to "transform" the generation of electricity in the United States -- in the face of a statute that nowhere talks about granting such a power. In over 300 pages of nearly incomprehensible regulatory newspeak, the CPP effectively requires closure of all or nearly all coal-fired power plants in the country, and their replacement with new facilities that must include large amounts of far-more-expensive and hugely unreliable "renewables" like wind and solar. Coal-fired power plants currently provide about 35% of all electricity in the country, with high reliability and rock bottom cost. Some states (such as West Virginia) get nearly all their electricity from coal. The CPP, in defiance of basic principles of federalism, simply orders those states, against the will of their elected officials, to start imposing these enormous costs on their citizens. And, until the Supreme Court granted its stay, EPA would have required the states to comply on a schedule which could only be met if multi-billion dollar decisions were made and funds committed before the legality of the rule could be tested in court.
The most remarkable thing about the CPP is the total lack of either statutory or scientific basis for EPA's action. Its view is that it needs neither when it has embarked with messianic zeal on a crusade to "save the planet" from the dangers of carbon dioxide.
As its supposed statutory support, EPA invokes a section of the Clean Air Act (section 111) that not only is inapplicable on its face, but that also contains a prohibition against its use as to sources already regulated under another section (112) -- which these sources are.
For scientific support, EPA relies on what it calls "lines of evidence" that, to its mortal embarrassment, have been thoroughly invalidated by the failure of real-world evidence to support its projections of climate doom. Its models for projecting warming have been shown to be fantasy by nearly two decades of flat global temperatures; and the physical mechanism by which EPA claims the warming is to occur has been demonstrated absent by the lack of any "hot spot" in the tropical troposphere. And even EPA's crazy climate models can't project any benefit from the supposed emissions reductions of the CPP beyond a few hundredths of a degree -- well within the margin of error of any world temperature measurement system we can devise.
Yet with neither statutory nor scientific support, until stopped yesterday by the Supreme Court, EPA marched forward to impose tens and hundreds of billions of dollars of costs on the American people. Without doubt, there is that frisson of excitement that the bureaucrat can get from forcing the yokels in coal-dependent states like West Virginia, Ohio, Kentucky and Georgia to pay double and triple for their electricity. Now, at least the basis for that power grab will be tested by the courts before it can be put into effect. And with a hard look at the statute and the science, there is even a likelihood that the courts will save us from EPA's madness.
Further thoughts (that I didn't have room for within the constraints of an op-ed submission):
(1) Many have pointed out that this is the first time that the Supreme Court has issued a stay of this nature enjoining the government from putting into effect a regulation of general applicability. True enough. But it is important to understand that this stay comes against a background of several cases where EPA literally taunted the Supreme Court with arguments that prior precedents make it such that "we can do as we please and there is nothing anybody can do about it." Those precedents include both the Chevron case mentioned above, and also precedents relating to finality that would leave EPA rules in place during court challenges while they do enormous harm, even if they are later vacated.
- In a 2012 case called Sackett, the Sacketts had a house under construction in a residential neighborhood when the EPA determined that their lot was part of the "waters of the United States," and issued a compliance order requiring the Sacketts to remove the foundation, restore the lot, and give EPA access. EPA imposed a $75,000 per day fine for each day the Sacketts did not comply. When the Sacketts attempted to challenge the EPA determination in court, EPA took the position that the compliance order was not "final agency action," and therefore the courts had no jurisdiction, even as the fines mounted. And the Ninth Circuit agreed! The Supreme Court reversed and held that the Sacketts' court challenge could proceed.
- In a 2015 case, Michigan v. EPA, the Supreme Court struck down another recent EPA rule regulating power plants, this time relating to emissions of mercury, on the ground that EPA had not conducted a sufficient cost-benefit analysis. The very next day, in an official agency blog post, EPA boasted that the Supreme Court's decision was effectively a nullity. The reason: the mercury rule had not been stayed during the years of litigation, and during that time the "majority" of power plants had already complied. Then, on remand, the DC Circuit declined to vacate the rule based on the representation that nearly everyone was in compliance, even though the Supreme Court had declared the rule unlawful.
One might see how the Supreme Court's patience with EPA could be wearing thin.
(2) Where will this matter now go? The Supreme Court's stay means that there will be no enforcement of the rule during the remainder of the Obama administration. A new Republican President could very well just withdraw EPA's CPP rule, and that would end the matter. But assuming that that does not happen, it's clear that the courts are highly polarized on this one. The Supreme Court's order granting the stay was 5 to 4, with the usual "conservatives" in favor and the usual "liberal" judges dissenting. It's clear to me that the latter four are committed to the cause of "saving the planet," and that to them that cause trumps any and all other considerations like: whether the statute gives EPA this authority, whether EPA's action is constitutional, how many billions this might cost, whether electric bills of the poor might be doubled or tripled, whether there is actually any evidence that increasing CO2 has warmed the atmosphere, whether even if CO2 is warming the atmosphere this rule would make any measurable difference, and anything else.
(3) As usual, the New York Times editorial on the subject provides a perfect window into the groupthink of the Left that informs the dissenting four Supreme Court justices.
The Supreme Court’s extraordinary decision on Tuesday to temporarily block the Obama administration’s effort to combat global warming by regulating emissions from power plants was deeply disturbing. . . .
But does the Clean Air Act, let alone the Constitution, give EPA authority to do what it has done?
The rule is based on the Clean Air Act — which, as the court has already made clear in multiple cases, gives the federal government broad authority to regulate a range of pollutants, including carbon emissions from power plants.
Love that deep analysis! Anyway, I don't think the New York Times is going to convince the majority five Supreme Court justices, any more than I am ever going to convince the New York Times.