Via The Wall Street Journal:
When President Obama hasn’t had his way on climate, immigration and so much else, he’s rewritten the law and dared critics to stop him. Well, the Supreme Court has accepted his invitation with an extraordinary rebuke.
On Tuesday the High Court put a legal stay on the Administration’s rules to control carbon emissions in the states, known as the Clean Power Plan, pending judicial review. Challengers seeking stays must overcome fearsome legal criteria, and they are rarely granted.
Yet for the first time five Justices blocked what’s known as a “generally applicable regulation.” The one-page order prohibits the Environmental Protection Agency from enforcing the Clean Power Plan until the D.C. Circuit Court of Appeals rules on the merits, presumably with the Supreme Court as the final word.
The Clean Power Plan nominally applies to power plants, but the EPA is instructing states to reorganize their energy economies across industries and even households. The Court did not explain its reasoning, and the four liberal Justices dissented. David Rivkin and Andrew Grossman, among the counsel to the 27 states that brought the suit, have more legal details nearby.
The stay is an important rebuke to the political method of the anticarbon activists in the EPA and White House. Ditching fossils fuels will be a capital-intensive and generation-long transition, to the extent it is possible, and states must submit compliance plans as soon as this September that are supposed to last through 2030, or be subject to a federal takeover.
The legal challenges will take years, but the EPA hopes to engineer a fait accompli by bullrushing the states into making permanent revisions immediately. Once the Clean Power Plan starts, it becomes self-executing. If the EPA loses down the road, it will laugh that the opinion is too late and thus pointless.
Speaking last month with the Washington Post’s Eugene Robinson,White House chief of staff Denis McDonough mused, “Do I wish that Congress would have passed cap and trade several years ago? Sure.” But he added that “what’s actually happening on the ground” because of the Clean Power Plan and subsidies for wind and solar amounts to “a continuing revolution in the generation of electricity . . . The next President will not be inclined—or be able to, whether he or she wants to—to change it.”
“So President Trump will confront facts on the ground that he won’t be able to undo, or won’t want to undo?” Mr. Robinson asked. “That’s my belief,” Mr. McDonough replied.
The White House has been right about the success of its damn-the-law strategy—so far. Last year in Michigan v. EPA the Court voided a 2012 rule on mercury emissions. The chief EPA air administrator then gloated on the EPA website that the ruling didn’t matter because “the majority of power plants are already in compliance or well on their way to compliance” and “we are still on track.”
The stay suggests that a majority of the Court won’t allow this deliberate gaming of the slow pace of the legal process to become de facto immunity for anything the EPA favors. It’s especially notable because courts tend to be highly deferential to executive regulation.
The stay is also a warning to the D.C. Circuit, which will hear the case in June. Harry Reid packed that appellate court with liberal judges to serve as adjuncts of the regulatory state. The panel hearing the Clean Power Plan case denied the states’ request for a stay. When theMichigan case was remanded last year, the D.C. Circuit even refused to vacate the mercury rule that the Supreme Court said was illegal—on the circular logic that most power plants had already obeyed. The Justices seem more willing to defend the authority of the Constitution’s Article III courts.
The stay means in practice that the Clean Power Plan is stopped cold through Mr. Obama’s Presidency, and states can safely ignore the EPA’s threats until the courts rule on the merits. Even Democratic Governors may decide to wait given the uncertainty and billions of dollars their taxpayers would have to foot.
Credit here goes to some rebellious state Attorneys General like West Virginia’s Patrick Morrisey who haven’t acquiesced when Mr. Obama’s government has violated sovereign state prerogatives. Oklahoma AG Scott Pruitt deserves particular credit for developing the federalist arguments and exposing how the Clean Power Plan commandeers states.
The larger point is that Mr. Obama’s six years of governance-through-executive-order make his a fragile legacy. Unilateral gambits can be reversed by the next President, and the other branches of government are finally reasserting their constitutional powers. As anarchic as politics can seem these days, the American system of government is still on track—sometimes.
See the article here.
- On February 11, 2016