Obama’s Clean Power Plan Hits The Court Today

by William Teach | September 27, 2016 7:13 am

This could be a very big deal depending on the outcome. The oral arguments are on Tuesday

(Daily Caller[1]) The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments Tuesday in West Virginia v. EPA, the legal challenge to President Barack Obama’s signature global warming initiative, the Clean Power Plan (CPP).

The litigation is massive in scale — nearly every state in the union is involved in some capacity. West Virginia is leading a coalition of 27 states who are challenging the rule[2], while 18 states have come to the Plan’s defense. Each side is joined by activist and industry groups, electric companies, academics, lawmakers, tech companies, and retired dignitaries who together have filed over 70 amicus, or friend-of-the-court briefs.

The implications at stake are so significant that the U.S. Supreme Court preemptively issued a stay[3] of the CPP in February, one of the last orders Justice Antonin Scalia participated in before his death. Whatever the result, the decision could be blocked pending a petition for Supreme Court review. What’s more, the D.C. Circuit has elected to hear the case en banc, that is, as a whole, as opposed to a hearing by a three-judge panel which is typical of appeals. The court’s decision underscores the magnitude of the case.

The DC article dives into what the CPP is, the legal rationale behind the suit, what the EPA’s response is, and which way the D.C. court can be expected to rule. And the potential for the Supreme Court, because it will go there.

Not mentioned are the increased costs that will hit average Americans if the plan goes into effect. A few cents here, a dollar there, it all adds up to a higher cost of living.

Furthermore, as much as I dislike Trump, this is exactly one of the reasons it might be better to see him as president than Hillary. If, and it’s a big if, he nominates a justice who won’t go all lefty to the Supreme Court, we can take care of these idiotic type of rules. And let’s not forget the appointments of lower court judges.

Furthermore, appointing people to run agencies who will reign in the excesses and mission creep. And he can whack things like the CPP and Paris climate accord with the stroke of a pen.

Let’s boil the argument down

(Blasting News[4]) Rightly or wrongly, only an act of congress can change the law, if indeed a fix is even needed. One person fighting the CPP is Professor Laurence Tribe of Harvard Law School, President Obama’s mentor. He represents Peabody Energy. At stake is the shuttering of the remaining coal-fired power plants and a decimation of an entire industry.

Even though CO2 is considered ‘non-toxic’ to human health, it is likened to be agreenhouse gas responsible for the one degree of warming since recordkeeping began in the late 1800s. Coal-fired power plants don’t emit mercury, or much else for that matter, so the only gas left in the EPA’s arsenal was CO2.

The litigants will be arguing that the EPA changed the CPP dramatically after the commenting period ended. That would be a violation of the Administrative Procedure Act. There is also the anti-commandeering doctrine, which prevents any federal agency from forcing state governments to perform “coercive duties.”

We’ll see how this turns out, and whether the courts favor a governmental system run by the Legislative Branch, as was established by our Constitution, or an Executive dominated one, where they can do whateverthehell they want.

Crossed at Pirate’s Cove[5]. Follow me on Twitter @WilliamTeach[6].