by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Reducing carbon emissions (and thereby preventing catastrophic global warming) has always been one of President Obama’s primary goals. In his 2008 victory speech he declared, "Generations from now, we will be able to look back and tell our children that … this was the moment when the rise of the oceans began to slow and our planet began to heal."
He originally hoped to achieve this goal by persuading Congress to enact a cap-and-trade bill, but Congress refused to give him what he wanted. Following a pattern that has characterized his presidency, rather than accept the decision of the legislative branch, Obama attempted to get what he wanted by executive decree. Last summer his EPA issued an order known as the "Clean Power Plan" (CPP) requiring US power plants to cut carbon emissions by 32% within the next fifteen years.
A group of states promptly filed lawsuits challenging the CPP on statutory and constitutional grounds, and these suits were consolidated into a single case that will be heard in the U.S. Court of Appeals for the D.C. Circuit in June. To prevent the EPA from enforcing the order while the challenge is pending, in January representatives of 29 states and state agencies — including the North Carolina Department of Environmental Quality — asked the US Supreme Court to grant an emergency stay of the CPP pending appeal.
Yesterday, that request was granted. In a terse one-page order, the Court announced that:
The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," … is stayed pending disposition of the applicant’s petition for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicant’s petition for a writ of certiorari, if such writ is sought.
Most court watchers expected the stay to be denied, and, indeed, appended to the order was a note stating that Justices Ginsburg, Breyer, Sotomayor, and Kagan would have done exactly that. In reaching its unexpected decision, the majority was probably inspired by a desire to avoid what had happened in a previous case, Michigan v. EPA, in which its ruling against the EPA’s imposition of unreasonable mercury emissions standards came too late to have any effect. As the states explained in their application for the stay:
The day after this Court ruled in Michigan that EPA had violated the Clean Air Act … in enacting its rule regulating fossil fuel-fired power plants … EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that "the majority of power plants are already in compliance or well on their way to compliance."
EPA extracted "nearly $10 billion a year" in compliance from power plants before this Court could even review the rule … and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.
Other considerations presumably played a part as well. In the Washington Post Jonathan Adler notes that:
The decision … suggests that a majority of the court has concerns about the EPA’s authority to impose the CPP under the Clean Air Act….
There are serious legal arguments against specific elements of the CPP … as well as the position that Section 111 of the CAA allows the EPA to regulate greenhouse gases from power plants in the first place. The latter concerns raise the stakes of the case and strengthen the argument for a stay. This is because the question at issue is not merely whether the EPA observed the relevant procedural niceties or properly exercised its authority on the margin. Rather, the question is whether the EPA has the authority to do this at all.
I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.
Whatever the Court’s reasons for granting the stay, it constitutes a major setback for the President and for his environmental agenda. The EPA is barred from implementing or enforcing the CPP until the U.S. Court of Appeals for the D.C. Circuit, and (probably) the Supreme Court itself, has ruled on its legality. It will be years before the CPP can take effect … if it takes effect at all.
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