The Supreme Court scolded the Environmental Protection Agency last week for bombing Dresden, albeit long after the bombs fell. In 2011, the year the EPA proposed the anticarbon mercury rule that the Court has now ruled illegal, some 1,500 fossil-fuel-fired electric units were in operation. Only about 100 have not already closed or complied at a cost of billions of dollars.
Oklahoma Attorney General Scott Pruitt is hoping to prevent a replay on the EPA’s new Clean Power Plan, which will demand another 30% carbon reduction, on average, from the states. The rule was proposed by the EPA in June 2014 and is expected to be final by the end of this summer. The challenge Mr. Pruitt filed last week is a test of whether the snail’s pace of the judicial process in response to new rules lends de facto immunity to whatever the EPA wants to do, even if the conclusion is another legal defeat that arrives too late to make a practical difference.
The EPA is counting on it. The agency knows that the Clean Power Plan’s precarious legal footing will be litigated for years, but it is trying to rush the rule out to make it a policy fait accompli before President Obama’s term expires. It also knows that the long lead time and investment decisions the plan compels—about power-plant retirements and upgrades, restructuring transmission lines, creating new green energy and efficiency subsidy programs—must begin today. Or better yet for the agency, yesterday.
Under traditional regulatory review, the appellate courts rarely put a stay on new EPA rules, even if states and utilities can show that they are causing irreparable and irreversible harm. The EPA is instructing Oklahoma to cut carbon emissions by 33% to meet an “interim goal” as soon as 2020, which means the state must begin spending despite the legal uncertainty.
So Mr. Pruitt is moving for a preliminary injunction against the Clean Power Plan. Under the 1958 Supreme Court precedent Leedom v. Kyne and a subsequent line of cases, the courts can use their powers to block federal-government actions “when an agency exceeds the scope of its delegated authority or violates a clear statutory mandate.” Plaintiffs must show that they are injured by judicial delay and that they are likely to succeed on the merits.
Leedom actions have been used to stop abuses from the National Labor Relations Board and the Federal Trade Commission, and the EPA is a promising target. The agency’s unprecedented measures to restructure the U.S. energy economy under an obscure provision of the 1970s-era Clean Air Act have zero grounding in the text of the statute, much less Congress’s consent. Mr. Pruitt also argues that under the High Court’s federalism jurisprudence the EPA is unconstitutionally commandeering the sovereign states.
If Mr. Pruitt does succeed and obtain an injunction, the Clean Power Plan would be put on ice for the rest of Mr. Obama’s term, much as the Fifth Circuit blocked his executive immigration actions. More to the point, an injunction would rebuke an agency that thinks it is above the law.
See the article here.
- On July 8, 2015