Recently, 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.