Clean Power, Dirty Hands

The brawl over the Obama EPA’s “clean power” plan—an ambitious design to de-fossilize the entire economy and to make Planet Earth spin westward for a change—has reached the Supreme Court.Last week, 29 states filed an emergency application with Chief Justice Roberts to stay EPA’s rule while appeals are pending. (The Chief is in charge of such petitions from the D.C. Circuit, which put the case on an expedited schedule but denied the requested stay. He can handle the appeal on his own, or consult his colleagues.)

The application argues that EPA’s rule isn’t remotely legal; that states (as well as private operators such as utilities, which have filed a very similar application) must nonetheless undertake massive planning and investment decisions now; that the rule impermissibly commandeers states; and that the Supreme Court would quite likely grant cert in a merits case and overturn EPA—years from now, when it’s too late. And that, the states say, has become EPA’s m.o. Here’s the Chief-they’re-laughing-at-you opening paragraph (footnote omitted):

This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case. The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule […] and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.

Yep: that’s how they think and operate at the improbably named Reagan Building. They’ve pulled this stunt several times, and they’re no longer making any bones about it: EPA’s rule counts the in terrorem effects prior to the rule’s effective date as benefits of the rule.

Quousque tandem, Catilina?

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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  1. gabe says

    Nice! Here is fuller quote for the rest of us.

    “When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now”

    But we ain’t Romans and have neither their sense nor courage. No, today we would characterize that “long madness” as tradition and claim that we must, both juridically and culturally, defer to tradition.

  2. R Richard Schweitzer says

    What could “follow,” perhaps what should follow, given the perversions to our existing legal (and judicial) system is the establishment of a New Court**, capable of prompt responses to needs for control and implementation of limiting principles upon the *entire* Federal Administrative State.

    ** described previously on this site in August 2015 and et seq.


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