Energy, Environment, SCOTUS

Striking down Obama’s climate legacy has its day in court

7

President Obama’s flagship policy on climate change had its day in court on Tuesday, September 27 in the U.S. court of appeals for the District of Columbia. The international community is closely watching; most Americans, however, are unaware of the historic case known as the Clean Power Plan (CPP) — which according to David Rivkin, one of the attorneys arguing against the plan: “is not just to reduce emissions, but to create a new electrical system.”

For those who haven’t followed the Environmental Protection Agency’s (EPA) rule, here’s a brief history that brings us to up to date:

  • EPA published the final CPP rule in the Federal Register on October 2015.
  • More than two dozen states and a variety of industry groups and businesses immediately filed challenges against it — with a final bipartisan coalition of more than 150 entities including 27 states, 24 trade associations, 37 electric coops, 3 labor unions, and about a half dozen nonprofits.
  • On January 21, the U.S. Court of Appeals for the District of Columbia denied a request for a stay that would have prevented implementation of the rule until the court challenges were resolved.
  • On February 9, the Supreme Court of the U.S. (SCOTUS), in an unprecedented action, before the case was heard by the lower court, overruled, and issued a stay that delays enforcement of CPP.
  • The Court of Appeals was scheduled to hear oral arguments before a three-judge panel on June 2, but pushed them to September 27 to be heard by the full court — something the court almost never does (though for issues involving “a question of exceptional importance” procedural rules allow for the case to proceed directly to a hearing before the full appeals court).

The court, which is already fully briefed on a case before hearing the oral arguments, typically allows a maximum 60-90 minutes to hear both sides and occasionally, with an extremely complex case, will allow two hours. The oral argument phase allows the judges to interact with lawyers from both sides and with each other. However, for the CPP, the court scheduled a morning session focusing on the EPA’s authority to promulgate the rule and an afternoon session on the constitutional claims against the rule — which ended up totaling nearly 7 hours. Jeff Holmstead, a partner with Bracewell Law, representing one of the lead challengers, told me this was the only time the full court has sat all day to hear a case.

One of the issues addressed was whether or not the EPA could “exercise major transformative power without a clear statement from Congress on the issue” — with the 2014 Utility Air Regulatory Group (UARG) v. EPA determining it could not. Republican appointee Judge Brett Kavanaugh noted that the UARG scenario “sounds exactly like this one.”

Judge Thomas Griffith, a Bush appointee, questioned: “Why isn’t this debate going on in the floor of the Senate?” In a post-oral argument press conference, Senator James Inhofe (R-Okla.) pointed out that the debate has been held on the Senate floor in the form of cap-and-trade legislation — which has failed repeatedly over a 15-year period. Therefore, he said, the Obama administration has tried to do through regulation what the Senate wouldn’t do through legislation.

“Harvard law professor Laurence Tribe, one of Obama’s mentors,” writes the Dallas Morning News: “made a star appearance to argue that the Clean Power Plan is unconstitutional.”

Judge Karen LeCraft Henderson, a Bush appointee, concluded: “You have given us all we need and more, perhaps, to work on it.”

The day in court featured many of the nation’s best oral advocates and both sides feel good about how the case was presented.

For the challengers (who call CPP “an unlawful power grab”), West Virginia Attorney General Patrick Morrisey, who along with Texas AG Ken Paxton, co-lead the case, reported: “We said (then) that we were looking forward to having our day in court on the merits. Today was that day. I think that the collective coalition was able to put very strong legal arguments forward, as to why this regulation is unlawful, and why it should be set aside.”

But the case has its proponents, too, and they, also, left feeling optimistic. In a blog post for the Environmental Defense Fund, Martha Roberts wrote about what she observed in the courtroom: “The judges today were prepared and engaged. They asked sharply probing questions of all sides. But the big news is that a majority of judges appeared receptive to arguments in support of the Clean Power Plan.” She concluded that she’s confident “that climate protection can win the day.”

The Wall Street Journal (WSJ) summarized the session saying that stakeholders on all sides were left “parsing questions and reactions, and searching for signs of which way the judges are leaning.” U.S. News reported: “The judges repeatedly interrupted the lawyers for both sides to ask pointed questions about the legal underpinnings of their positions.”

The decision, which is not expected for several months, may come down to the ideological make-up of the court: 6 of the judges were appointed by Democrat presidents and 4 by Republicans. Though, according to WSJ, Obama appointee Judge Patricia Millet “expressed concern that the administration was in effect requiring power plants to subsidize companies competing with them for electricity demand.” She offered hope to the challengers when she said: “That seems to be quite different from traditional regulation.” Additionally, in his opinion published in the Washington Post, Constitutional law professor Jonathan Adler, stated: “Some of the early reports indicate that several Democratic nominees posed tough questions to the attorney defending the EPA.”

Now, the judges will deliberate and discuss. Whatever decision they come to, experts agree that the losing side will appeal and that the case will end up in front of the Supreme Court — most likely in the 2017/2018 session with a decision possible as late as June 2018. There, the ultimate result really rests in the presidential election, as the current SCOTUS make up will be changed with the addition of the ninth Justice, who will be appointed by the November 8 winner — and that Justice will reflect the new president’s ideology.

Hillary Clinton has promised to continue Obama’s climate change policies while Donald Trump has announced he’ll rescind the CPP and cancel the Paris Climate Agreement.

The CPP is about more than the higher electricity costs and decreased grid reliability, which results from heavy reliance on wind and solar energy as CPP requires, and, as the South Australian experiment proves, doesn’t work. It has far-reaching impacts. WSJ states: “Even a partial rebuke of the Clean Power Plan could make it impossible for the U.S. to hit the goals Mr. Obama pledged in the Paris climate deal.” With Obama’s climate legacy at stake, the international community is paying close attention.

And Americans should be. Our energy stability hangs in the balance.

This is a guest post by Marita Noon executive director for Energy Makes America Great Inc., and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). She hosts a weekly radio program: America’s Voice for Energy—which expands on the content of her weekly column. Follow her @EnergyRabbit.
  • RLTMLT

    Many American citizens are wondering what happened to that America that was once the technological master of the planet up to forty years ago ! Now we languish after Obama canceled the contract to build a replacement for the Space Shuttle shortly after entering office. The current prime contractor has been given free reign to crash just about every new rocket design that ends up on the launching pad. We have been reduced to relying on the Russians to get our Astronauts to and from the International Space Station. NASA was able to maintain an almost perfect safety record from it’s beginning in the late fifties to it’s severe curtailment in the eighties. NASA has been forced to extend it’s estimate of our ability to put a manned mission on Mars by thirty years. Hopefully we can hitch a ride with the Chinese Space Program who has been pushing the limits of technology to make a manned Mars landing possible by the end of the next decade ! This continued constant decline has in large part been fostered by a Fanatical Environmental Movement that has virtually paralyzed our scientific development by making it almost impossible for legitiment scientists to get the funding for their research, any grant request that does not include an objective to end Global Warming are automatically refused ! A group of Malthusian Cultists whose goal is to return to a point in time before the Renaissance that spurred mankind’s future advancement through the adoption of aggressive scientific research !

    • Kevin

      Very well said! It should occur to people on the Left, that if life was so great back in the 1700s, how come the people who actually lived back then had the desire to improve their condition in life, and created the modern world of: 1) the electrical grid, which effectively replaced burning wood to cook food, heat houses, etc., 2) revolutions in transportation, so that we don’t have to take weeks to travel a couple hundred miles (by horseback), 3) revolutions in medial science and technology (leeches, anyone?), and 4) information technology (computers, communications, the internet, etc.). Of course, my comments could extend to a hundred pages by filling in just a little more detail, but the message is clear. Of course, the main problem with the Left is precisely that they do NOT think, or, as Ronald Reagan put so well, “The problem with liberals is not that they’re stupid, its just that everything they know, just isn’t so!” The “agrarian ideal” was in truth, a time when Life was short and brutal.

      • RLTMLT

        Very eloquently put Kevin !

        The current group of Liberals have taken up following the Malthusian cult that long ago formed in Europe and rejected the uncontrolled rise of human population spurred on by advances in scientific research ! Obviously many of the monarchies in Europe found Malthus’s views intriguing. He first articulated his views regarding population in his book, Essay on the Principle of Population (1798). He saw positive checks to population growth as being any causes that contributed to the shortening of human lifespans. He included in this category poor living and working conditions which might give rise to low resistance to disease, as well as more obvious factors such as disease itself, war, and famine. The so-called environmentalist long ago adopted Malthus’s views to justify their efforts to protect Mother Earth and their transition to Global Warming as their newest cause is just an extension of Malthus’s views.
        This aligns nicely with the Obama administration’s on going support of war in the Middle East that has decimated various populations and forced many more to migrate to Europe where over population could have disastrous effects ! Clinton even wants to bring significant numbers here in the middle of the worst economic climate that this country has seen in eighty years !

  • Don39

    It is no surprise that Clinton the leftist mobster has said she will continue the Unconstitutional path of the treasonous tyrant Obama and since Obama mostly got away with it because of spineless congress and courts, will go even further.

  • Richard Bagenstose

    well if oboma has anything to say about it , either they will give him his way or die misteriously like scolia did

    • headonstraight

      An elderly obese man with a history of heart problems and diabetes dies and idiots like you buy into silly-ass conspiracy theories about his death. You should be ashamed, but it is obvious from the trash you repeatedly post that you are as deficient in shame as you are in literacy.

  • Dennis B Anderson

    How dumb are people? Electrical power is the way to go. It was 6 years ago I took out the gas electrical motor in my motor home and put in a dc/ ac converter. You can do this to planes / trains / cars. One of the fastest cars ever built was an electric car. You can parachute everything you need in the Alaskan tundra and set up a dc/ ac powered house.
    more efficient than the one youre living in off the grid. THERES NO MONEY IN IT FOR THE POWERS THAT BE!! If Hilly wants to shut down coal first have something to take its place you stupid M-F Tesla had a car back in the late 30s that was electrical he built.
    NO MONEY IN IT!

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