COMMENTARY: Supreme Court’s Clean Power Plan order is partisan and a betrayal of the law and science

partisans

Tuesday’s shocking (and unexplained) decision by the U.S. Supreme Court to block implementation of the Obama administration’s signature program to reduce the nation’s greenhouse gas emissions is more than legally questionable. It indicates that the willingness of the five justices who supported the order to march in lockstep with the party of the Presidents that appointed them is so determined that even the growing evidence that anthropogenic climate change threatens this planet’s ability to support life, and the stability of human civilizations, does not deter them from their partisan, extra-legal loyalties.

It is not easy to get a stay of a challenged government action pending resolution of a lawsuit on its merits. In fact, until yesterday, it was thought by most legal scholars to be darn near impossible to get such an order without a clear showing that the party requesting it had suffered and would continue to suffer harm. U.S. solicitor general Donald Verrilli made this clear in the government’s response to the request for a stay. “Applicants identify no case in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,” he wrote.

Texas and the other states that have petulantly objected to the necessary task of reducing reliance on coal for electricity generation have suffered none. The Clean Power Plan requires no actual changes in the make-up of the power mix for several years, at minimum, and the plan does not require states even to adopt a plan. They could choose to defer to the federal government. Nor has the coal or utility industries, since the Clean Power Plan allows the prospect of as much as six years before any changes to the generation mix are mandated and, in any case, the demands of the market are causing a shift from coal.

Apparently, the Supreme Court’s own direction, given in 2007, to regulate carbon dioxide emissions under the Clean Air Act also was thought by ideologues John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito to be irrelevant, even though the Court has previously and frequently held that a party seeking a stay must demonstrate a likelihood that they will win their argument on the merits.

So, too, did the five Republican justices, in thrall to their party’s utter refusal to acknowledge that human combustion of fossil fuels is changing our atmosphere and oceans, ignore the reality that mankind has a limited window in which to reduce and eliminate carbon pollution before the impacts of greenhouse gas accumulations become so potent that society will effectively lose the ability to control the outcome. Thus they twisted or ignored yet another requirement for a stay: that the public interest must be served by one.

Then, too, the Supreme Court’s ill-advised intervention has undermined the most significant achievement of international negotiators in all the years since the phenomenon of climate change has been understood – last December’s Paris accord. How long will it be before China and India, the world’s two other leading emitters, decide that there is no point in their nations undergoing the expense and turmoil associated with transforming the way electricity is produced and transportation is provided if the United States of America cannot keep its word?

So what’s next?

The Obama administration should, first, invoke section 115 of the Clean Air Act and re-issue the Clean Power Plan under the aegis of that provision. As a recent report indicates, section 115 provides a virtually unassailable basis for emission reduction mandates when international agreements dictate them.

Of course, yesterday’s action by the Republican five, unaccompanied by any statement of the reasons that Messrs. Roberts et al. think justify their choice, indicates that not even a clear-cut statutory foundation of a regulation will be enough to sustain it if their partisan ideology and loyalty to the bottom line of oil and coal companies and the ideology of this country’s most politically backward states dictates they stand against it.

The real solution is going to have involve a replacement of at least one of the five Republican justices. Sure, given that Scalia and Kennedy are close to eighty years old, nature may provide an opportunity for that replacement sooner rather than later. But that’s hardly a sure thing and, in any event, even the contempt the Republican five has so richly earned does not impel a wish for personal bad fortune. No, wishing for a vacancy on the Court is not the right response.

Instead, the administration should start to play hard ball.

The U.S. Department of Justice should ask at least one of the Republican justices to recuse themselves from future involvement in the Clean Power Plan litigation on grounds that partisan loyalty and bias precludes them from making a fair decision. If that request is denied, the administration should use whatever legal tools that even remotely offer the prospect of a compelled recusal to force the issue.

Of course, that tactic has only uncertain prospects for success and so the administration should determine to step up the fight in the legislative branch, too. President Obama should explain to the grandees of Congress that none of the GOP’s priorities will be enacted into law, at least with his signature on any bills that reflect them, unless and until both chambers send him a bill that explicitly clarifies that the Clean Air Act authorizes the Clean Power Plan.

And, of course, the administration should be making the case to voters very clearly that the outcome of this fall’s election will, quite plainly, dictate whether humanity acts in response to the plain and overwhelming evidence that our addiction to fossil fuels is endangering our economic and social foundations. Famine, rapid and widespread transmission of tropical disease, and drought are, after all, no picnic. Mr. Obama should not hesitate to mention – often – the risks to Earth’s biodiversity and ability to sustain life.

As for the people of this country, they should take note. The future quite literally depends on their choice this autumn. If ever there was a time to learn about climate change, and to take seriously the most awesome environmental challenge of modern history, that time is now.

States challenge Clean Power Plan

Two dozen states asked a federal court Friday to invalidate the Obama administration’s signature effort to address climate disruption and to temporarily block it from going into effect while litigation proceeds.

The coalition, led by the coal-dependent state of West Virginia and its Republican attorney general Patrick Morrisey, filed a petition for review of the Clean Power Plan and a motion to stay the regulation in the U.S. Court of Appeals for the District of Columbia Circuit.

“The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history,” Morrisey said in a statement. “West Virginia is proud to be leading the charge against this administration’s blatant and unprecedented attack on coal.”

The recalcitrant states’ motion to stay indicates that one of the main pillars of the attack on the Clean Power Plan will be that it is not authorized by the Clean Air Act:

“EPA has exceeded its authority under Section 111(d), especially in light of the clear-statement rule set forth in [a 2014 U.S. Supreme Court decision]. In [that case], the Supreme Court rejected an expansive EPA regulation of carbon dioxide emissions, holding that ‘[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.’ Congress, the Court explained, is expected to ‘speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ EPA now claims to have found in Section 111(d), a long-extant provision, the power to transform the nation’s energy grid. But the text of Section 111(d) does not begin to suggest that EPA may make such ‘decisions of vast economic and political significance,’ much less ‘clearly’ authorize it to do so.”

Patrick A. Parenteau, a professor at Vermont Law School and an expert on environmental law, said that another argument likely to be made in the case, and similarly outlined in the request to prevent the regulation from taking effect, is that EPA cannot regulate carbon dioxide emissions from power plants under section 111(d) of the Clean Air Act because it has already chosen to regulate mercury emissions from them under section 112 of the law.

Parenteau labeled this argument as “a loser.”

“It is a killer argument, of course, and if it wins then the Clean Power Plan is dead,” he said. “If they get a really conservative panel that’s looking to do real harm to EPA, ten percent is about what I give that.”

Parenteau explained that another likely statutory argument, which focuses on whether EPA can mandate greater use of renewable energy resources by power plants and more production of energy from natural gas combined cycle power plants, may have a better chance of success.

“The ‘beyond the fence line’ argument is a much closer call,” he said. “There’s going to be a close question on whether the renewable build block survives intact.”

Another argument by opponents of the Clean Power Plan previewed by the motion to stay filed Friday is that it violates the U.S. Constitution’s Tenth Amendment. They claim that the regulation unlawfully forces states to expend financial resources to achieve a federal policy goal.

But Parenteau pointed out that the Clean Power Plan’s provision allowing states to opt-out, and instead allow EPA to impose a federal implementation plan within the state, probably renders this argument weak.

A 1992 decision of the U.S. Supreme Court held that a similar approach mandated by another section of the Clean Air Act does not violate the Tenth Amendment.

The states that joined West Virginia in challenging the Clean Power Plan in court Friday are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin, and Wyoming.

A number of business organizations and trade groups also plan to file a petition for review seeking invalidation of the regulation, including the National Federation of Independent Business, National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.

At least 15 states and two cities will join the Obama administration in defense of the Clean Power Plan.

“My office is prepared to join with our partners to aggressively defend EPA’s Clean Power Plan – rules that will significantly reduce climate change pollution nationally,” New York’s Democratic attorney general Eric T. Schneiderman said in a statement. “These rules have a sound foundation in both science and the law, and build upon strategies New York and other states have used to successfully cut power plant emissions.”

Efforts to delay or block regulation of greenhouse gas emissions from power plants are not limited to the courts. Two resolutions that would invalidate the Clean Power Plan will be introduced in the U.S. Senate next week by legislators representing states with economies that are heavily reliant on fossil fuel extraction.

According to a report Friday in The Hill newspaper, Sens. Mitch McConnell (R-Ky.), Joe Manchin (D-W.Va.), Shelly Moore Capito (R-W.Va.), and Heidi Heitkamp (D-N.D.) will file two Congressional Review Act resolutions.

Under the CRA Congress can effectively veto a regulation. However, a CRA resolution requires the signature of the President to be effective. President Barack Obama has already made clear that he will not sign measures that aim to interfere with implementation of the Clean Power Plan.

The Clean Power Plan became a legally effective regulation on Friday when it was published in the Federal Register.

Supreme Court poised to decide fate of mercury emission limits

The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.

The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.

Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.

The statute provides that EPA must “list” all sources of air pollutants that  “present[] a threat of adverse effects to human health or the environment” that “warrant[] regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.

The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric  power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.

The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.

According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.

During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.

Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.

They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.

Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.

“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”

The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.

Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.

“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”

If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.

“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.

The Supreme Court heard oral arguments in the case on March 25.

GAO report finds little impact on environmental rules from deadline cases

A federal watchdog agency has found that citizen suits that aim to force the Environmental Protection Agency to meet deadlines specified by federal environmental laws not have much impact on the substance of regulations.

The conclusion debunks an argument advanced by some right-wing politicians, including Republican members of the U.S. House of Representatives, that the agencies are improperly collaborating with environmental advocates to reach lawsuit settlements. For example, a 2013 report by the House Committee on the Judiciary concluded that citizen suit settlements are frequently used “to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.”

That House committee report went on to hypothesize at length about the impact of so-called “sue and settle” cases, surmising that they cause the agency to inappropriately adjust regulatory priorities.

“In sue-and-settle litigation, defendant regulatory agencies, such as the U.S. Environmental Protection Agency, typically have failed to meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action,” the House  committee report said. “Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to resolve it. This is because, once a decree or agreement is in place, the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding priorities, or serve other pro-regulatory ends.”

The cases studied by the Government Accountability Office for an audit report released last month do not support this claim.

GAO reviewed 32 “major” rules that EPA finalized between May 31, 2008 and June 1, 2013. Nine of them were issued by the agency after settlements of Clean Air Act lawsuits brought to enforce statutory deadlines.

“[N]one of the settlements we reviewed included terms that required EPA to take an otherwise discretionary action or prescribed a specific substantive outcome of the final rule,” GAO wrote in the report.

The report  explained that citizen suit settlements do not affect the substance of rules because a federal regulation that dates back more than 20 years prevents the government from agreeing to settlements that create mandatory duties. That regulation had its genesis in a procedure for approving settlements of lawsuits against government agencies instituted by Reagan administration attorney general Edwin Meese in 1986.

“[I]n general, this policy restricts [the Department of Justice] from entering into a settlement if it commits EPA to take an otherwise discretionary action, such as including specific substantive content in a final rule unless an exception to this restriction is granted by the [d]eputy [a]ttorney [g]eneral or [a]ssociate [a]ttorney [g]eneral of the United States,” the report said.

That limitation does not apply to consent decrees, which are essentially negotiated court orders approved by a federal judge.

Citizen suits are authorized by all seven of the nation’s principal anti-pollution laws.

 

EPA to delay emission rules for new and existing power plants

The Obama administration announced earlier this month that it would delay release of final rules limiting carbon dioxide emissions from existing electric power plants and release proposed rules governing greenhouse gas pollution from new power plants several weeks later than originally planned.

Environmental Protection Agency assistant administrator Janet McCabe disclosed the modified schedule during a press conference on Jan. 7. She said that the regulatory issues common to both new and existing power plants dictated a simultaneous release of the respective Clean Power Plan regulations.

The agency also said it would develop a model emissions rule to be imposed on states that refuse to act on their own to regulate greenhouse gas emissions from the electricity generation sector.

Since news of the delay in release of the two Clean Power Plan rules broke, commentators have speculated that the administration is seeking to maximize the likelihood that both will survive an expected legal challenge from the industry and others. One law professor who specializes in the Clean Air Act suggested on the Legal Planet blog that EPA may be seeking to harmonize the standards applicable to new and existing coal-fired power plants, particularly those that aim to encourage use of carbon capture technology.

EPA will issue the final rule for existing coal-fired power plants and the proposed rule for new, modified, and reconstructed facilities this summer.