The vultures circle the Clean Power Plan

The legal risks to the CPP are higher than they look at first sight.

How safe is Obama’s Clean Power Plan, adopted on Monday with conspicuous lack of ostentation, from legal attack?

It’s a regulation implementing the Clean Air Act of 1963 and its many later additions. The Supreme Court agreed in 2007 in Massachusetts v. Environmental Protection Agency that carbon dioxide was a pollutant for the purposes of the Act, so the defence should be plain sailing – on paper.

Not quite.

The resounding defeat Chief Justice Roberts meted out to the plaintiffs in the fanciful challenge to ACA in King v Burwell widens the door for challengers to the CPP. Simon Lazarus at Jack Balkin’s highly expert constitutional law blog explains some of the problems.

John Roberts’ new doctrine of statutory construction lays down (italics supplied) that

A fair reading of legislation demands a fair understanding of the legislative plan.

Lazarus accepts that the 2007 ruling is a binding precedent for SCOTUS, so he doesn’t see a direct challenge on jurisdiction succeeding. IANAL, but with this politicised Court, can we be so sure? Carbon dioxide was clearly not specifically envisaged by Congress in 1963. Adding it in was a judicial inference. I for one can easily see this Court reopening and reversing Massachusetts in the light of its shiny new doctrine.

That case was a suit by various progressive states to force the EPA to reverse its 2003 finding that it lacked authority to regulate GHGs from vehicles under the Act, so the interpretation is not a matter of the bleeding obvious. Roberts’ new doctrine does, it seems, weaken Chevron deference to executive interpretation of ambiguous statutes in matters of great policy importance.

Pace Lazarus, carbon dioxide is easily distinguishable from other pollutants. The Act’s target is
“air pollution which may reasonably be anticipated to endanger public health or welfare.” Mercury, soot, sulphur dioxide and so on quite demonstrably and measurably endanger public health. For CO2, you have to rely on welfare, a much more ambiguous concept. Climate change does endanger Americans through several channels: desertification, a rising sea level, a greater frequency of extreme weather events like floods, and spillover from climate-linked conflicts and disasters elsewhere in the world. However, these impacts depend on global emissions, of which the US is only responsible for 16% annually, though 29% cumulatively. This fact makes it tricky to justify the cost-benefit ratio of regulations to cut emissions, considered unilaterally. It was certainly not part of Congress’ legislative plan that the implementing regulations could become part of a grand cooperative global scheme to reduce emissions by treaty.

I pray that the CPP survives the blizzard of legal challenges which will be launched against it the day after its publication in the Federal Register. But these challenges are far more credible than the later ones against ACA – King v Burwell, which failed, and Hobby Lobby, which succeeded against the odds.

None of this helps the increasingly desperate coal industry and its champion turtle Mitch McConnell (footnote). For the war on coal is completely justified by the proven health impacts alone, which are essentially local and regional. A reversal of Massachusetts and rewriting of the regulation around health impacts alone would only help natural gas, which emits CO2 but hardly any other pollutants.

Barack Obama is a skilled politician. I would be surprised if he has not gamed out such a scenario. The emissions target is unambitious by European or Chinese standards, though it was quietly raised from a 30% reduction in GHGs from 2005 to 32%. This modesty makes it much easier to defend the regulation on shockproof health grounds alone. Meanwhile, the regulation is law. Whatever they think of it, state officials now have a duty to carry it out, and company directors to consider its impacts on their business plans. Obama plans to be on the side of a cultural sea-change, as with gay rights.

In the end, vultures have no talons and cannot kill their prey.

Mitch McConnell, in a WSJ op-ed: “States report that the regulation’s mandates are not technologically achievable..” The CPP will lead to a renewable share of generation of 25% in 2030, according to the EIA base projection. Germany is already at around 30% renewable electricity generation. (Update 6 August: the share was 34% in the first half of 2015, according to Fraunhofer ISE). But then, it’s a well-known conservative factoid that Germans suffer constant power cuts and brownouts from all that unreliable wind and solar … More likely, they would take to the streets if their 15 minutes of annual outages suddenly increased to the four hours Americans put up with.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

7 thoughts on “The vultures circle the Clean Power Plan”

  1. It's been a long time since I commented here (not since we were required to get logins, apparently!), but this topic is near and dear to me so I wanted to jump in. I was an EPA contractor for several years, and speak from experience when I say that every new major rulemaking under CAA results in legal challenges and a nasty PR blitz by the likes of NAM and APPA and others. This is nothing new. I was around for the last update to the Ozone NAAQS, and it was equally aggressive. Perhaps I'm wrong, but I think the Court actually cares quite a bit about policy outcomes, and if one interprets Massachusetts as a signal that the Court favors (or is unopposed to) carbon regulation, then I suspect the findings in this case will reflect that. Assuming it makes it to the Supremes at all.

    Just my two cents, though.

    1. Welcome back!

      I hope you are right. You can certainly make a case this way. Country-club business Republicans, who seem closest to CJ Roberts' view of life, are less and less wedded to the coalmen. If they owned coal shares, they have taken a bath on them. Increasingly they have interests in solar and wind, on which they are doing well. When the six biggest European oil companies called in June for a global carbon price, this was interpreted as throwing coal under the bus to protect their gas earnings. The CPP is crafted so as not to hurt gas. That's left to Hillary.

      Lazarus seems to take it for granted a case will go to the the Supremes, even in the form of a refusal to review on standing grounds.

      1. Yeah, I do think it will at least reach the Supremes, even if only in the form of a refusal to review on [x] grounds. Imprecise language on my part; apologies.

  2. I can't claim to have the ability or knowledge concerning the Supreme Court that Simon Lazarus has. However, I think that any review by SCOTUS will take play, at the earliest, in the October, 2016 Term or, more likely, in the October 2017 Term with an opinion in either 2017 or 2018. There will likely be some changes in the membership of the Court. However, there is something that will likely affect the outcome to an even greater extent.

    By 2017, the danger posed by global climate change will be obvious to all but the truly deranged. No one in their right mind in 2017 will be able to argue that we should wait a few years until the special interests allow Congress to act.

    Moreover, the President's initiative will be actually be on track since power companies, in making their decisions to build power plants, will, as a matter of sound business judgment, will actually be hewing to the requirements of the initiative even though it's under attack. After all, as I said above, by 2017 only the truly insane will deny the immediacy of global climate change and business decisions to say build a power plant that will go online in roughly 8-10 years and has a useful life of 40 years will take this reality into account.

    1. Sanity and a 3-digit IQ favor your points.

      Sadly, "obvious to all but the truly deranged" seems to include quite a few wealthy and influential individuals, as well as a large number of politicians in Washington.

  3. " I for one can easily see this Court reopening and reversing Massachusetts in the light of its shiny new doctrine."

    I respectfully disagree. I think the CPP faces some other legal obstacles, but Kennedy voted for the majority in Mass v. EPA, and he's not going to reverse himself now. The new doctrine in any event is about removing discretion from the regulators under certain circumstances so as to have the law make sense, and removing discretion is exactly what the Court did in Mass v EPA.

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