Obama and the environment: Clean power or power play?

power plantBy its plain language, the bill prohibits the EPA from regulating the power plantsRecently, the DC Circuit Court of Appeals heard one of the strangest cases ever argued in a federal appellate court – a seemingly esoteric controversy that, in any other context, might be relegated to obscurity.   But since winning this case is the linchpin President Obama needs to win the “War Against Coal,” the EPA has staked everything on pulling an oversized rabbit out of a very small hat.

Cue State of West Virginia v. EPA and Murray Energy v. EPA, two joined cases comprising the first challenge to the president’s recent efforts to cement his climate change legacy. Fifteen states, along with select coal companies, have sued for an “extraordinary writ” to prevent the EPA from promulgating new carbon regulations set to be finalized this summer.

This legal imbroglio began with the president’s desire to reduce carbon dioxide (CO2) emissions from coal-fired electrical power plants.  CO2 is the principal “greenhouse gas” blamed for global warming.  As such, it is now the focus of the most aggressive EPA action under the Clean Air Act since its passage decades ago.

Last year, as part of the president’s proposed Clean Power Plan, the EPA began drafting rules expected to force states to curb emissions within a year – an onerous burden, as the states involved in Thursday’s challenge will likely agree. But it is also dubious from a federalism standpoint. The EPA claims the right to regulate emission concentrations “beyond the fence line” – without restricting its inquiries to amounts actually emitted from power plants.  Thus, its authority would extend beyond power generators to consider dispatch and retail demand, areas historically regulated by the states, and not the federal government. 

Beyond this unprecedented regulatory preemption of state authority lies an even greater and more dangerous overreach. The EPA’s argument confidently hinges on convincing the courts that the Clean Air Act doesn’t mean what it says. By its plain language, the bill prohibits the EPA from regulating the power plants from which these emissions derive. Moreover, coal plants are already addressed under an entirely different section of the bill than the one EPA insists justifies its new powers.

Under a less ambitious administration, that would be the end of the controversy. Instead, the EPA identified one of the most unusual Congressional oversights in American history to prove its position. 

As the result of a “drafting error,” Congress actually passed two versions of the provision at issue, 111(d) – one which prohibits the EPA from regulating greenhouse gases from coal-fired power plants, and one which permits such regulation. The prohibitive version was published in the United States Code, while the permissive one was printed elsewhere. With a regulatory “sleight of hand,” the EPA now claims its right to a “deferential” interpretation of the Clean Air Act, and argues that the more permissive section should be applied.  

If the EPA’s argument prevails, the consequences cannot be overstated.  In spite of a lack of clear statutory authorization, this unelected body could take complete command of energy production and the manner by which it is used throughout the United States. Major components of our economy that have never before been affected by EPA regulation or the Clean Air Act may be subjected to its regulatory authority.

At least the Affordable Care Act was passed by Congress. Here, this vast new scheme has sprung full-grown from the president’s imagination.

Fortunately, the D.C. Circuit, and ultimately the Supreme Court, can still prevent this imperial power grab.  Less than a year ago, in reviewing the scope of the EPA’s regulatory capabilities on greenhouse gases, the High Court expressed a “measure of skepticism” when the EPA discovered an “unheralded power to regulate” a “significant portion of the American economy.”  The Court warned that it “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of ‘vast economic and political significance.’” To say the least, Congress has not done so here.  

Obama, through his EPA, is acting beyond the scope of his authority – a persistent symptom that threatens the Constitutional separation and balance of powers that has protected our liberties since our Republic was founded.  It is time, indeed past time, for our nation’s courts to pay heed and, echoing Chief Justice Marshall, once again stress “it is emphatically the province and duty of the judicial department to say what the law is.”  Such a rebuke will remind the President that, despite his immense power, he cannot govern our democracy with imaginative strokes of his pen.

Faulk is a trial, appellate, energy and environmental lawyer. He is senior director for Energy, Natural Resources and the Environment for the Law and Economics Center at George Mason University School of Law and a partner with Hollingsworth, LLP, in Washington, DC.


Comments (10)

  • Avatar

    Al Shelton


    To me it is like arguing about the epicycles in the geocentric universe.
    The whole theory was wrong.
    Likewise, the Greenhouse Gas Theory is wrong. It has never been proven empirically or experimentally.
    The EPA has to prove that CO2 is causing global warming as a first priority.
    If they cannot, then the rest is moot.

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    bob ashworth


    CO2 is 400 ppmv in the atmosphere and water vapor is 1.5 to 2%, so naturally the EPA calls CO2 the worst GHG. In reality, all gases and dust in the atmosphere cools the earth. Lying President, that is all he does well, and a lying EPA that knows nothing about science

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      That’s why it’s called “[b]secret science[/b]” 😉

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    It’s a power play. Gina McCarthy is on the record testifying that this isn’t about pollution control. If it’s not about pollution control, it’s not about pollution or clean power. It’s a power grab. [url]http://www.cnsnews.com/news/article/susan-jones/epa-chief-not-about-pollution-controlits-investment-strategy[/url]

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    The final proof of any self dealing will be evident when he leaves office.
    My bet is we are going to see Mini -Al step up to the pulpit at the UN or some other green dispensing machine .

    This recent behavior and shameless exaggeration is falling into an all to familiar pattern .

    The scary global warming hustle gets harder to do each year and the public are away ahead of media stuck on pumping hot air into the overblown scam .

    The models predicting doom and gloom
    are now proven to be highly inaccurate
    hence the rebrand to something shocking and which no one can deny …climate changes .

    No warming in over 18 years . Does anyone think the global warming hustlers didn’t know that 10 years ago ? Hence the rush to rebrand .

    They had to know and they kept pumping the scam regardless . In doing so they breached the public trust ,cost their economies $Billions of wasted dollars ,and worst of all caused to occur thousands of
    deaths from fuel poverty stemming from idiotic policies .

    The climate hustle is taking it’s last bows whether they admit it in public or not .
    The ring leaders can and will be held accountable .

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      Yes they know, but it’s money in the bank for them as long as it continues. They said a 15 year pause, well it’s 18 years now, still they continue. I’m starting to wonder it both sides are playing this game?

  • Avatar

    Will Scribe


    “…Pseudoscience and socialism,
    Obama and his tricks;
    Combining fear and ignorance,
    It’s such a potent mix.
    A big enough lie told often enough,
    How many are being deceived?
    And his incredulous rants on climate,
    By how many are being believed?…”
    Read more: http://wp.me/p3KQlH-Co

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    Will o Will has mastered the quill
    Obama Climate Hustle broken by a feather .

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    [quote]The prohibitive version was published in the United States Code, while the permissive one was printed elsewhere. [/quote]

    Geez! It’s like the birth certificate all over again.



    For 17 years, Obama’s publisher said he was Kenyan born, and then suddenly he wasn’t.

    Obama lies constantly, and so do his minions. They cannot be trusted to tell the truth unless it benfits them. For 17 years the “Kenyan born” story added to his allure, and when it was no longer beneficial to his career path, it was dropped.

    I don’t care where he was born, I just want him gone.

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      It doesn’t matter where he was born. American, British and Kenyan law all say the same thing :

      In case of diversity of parental citizenship, the child takes the citizenship of his father !

      O’bama’s father was NEVER an American citizen.

      Therefore O’bama was not born an American citizen regardless of birth location.

      Moreover, O’bama has never been naturalized. ERGO

      O’bama is

      the great IMPOSTER

      Ferdinand Waldo De Mara has just been demoted.

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