This week had an extraordinary event from the US Supreme Court that has enormous implications. The event: the Court ordered the US EPA's regulation on Clean Power Plan to be stayed until disposition of pending litigation at the federal appellate level, including the US Supreme Court.
This Order has great implications on several levels:
1) the Order is a split decision along idealogical lines, 5-4 with the liberal justices dissenting;
2) the Order signals that the Supreme Court is mightily displeased with the Executive and Legislative branches - and most specifically the US EPA - in conducting end-runs around the Judicial branch;
3) the Order signals the US EPA (and by extension, other agencies with intimidation power) that compliance by threat, where the threat is based on unsettled law, perhaps un-Constitutional law, cannot be allowed; and others.
In short, this Order, and the litigation behind it, is one of the most significant decisions of modern times. Each of the 3 implications above is discussed in more detail below.
The actual language of the Order:
"The application for a stay submitted to The Chief Justice
and by him referred to the Court is granted. The Environmental
Protection Agency’s "Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units,"
80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending
disposition of the applicants’ petitions for review in the United
States Court of Appeals for the District of Columbia Circuit and
disposition of the applicants’ petition for a writ of certiorari,
if such writ is sought."
For background, President Obama has long sought a bill from Congress that he could sign into law to reduce so-called greenhouse gas emissions from US industry, especially the carbon dioxide emissions from coal-powered electrical generating plants. Congress, not being total fools, declined. Enough members of Congress recognize the shenanigans and faulty data, the faulty procedures, and other forms of bad science behind the false-alarmists claims of imminent doom from man-made global warming. Obama, in response (and some would say retaliation) ordered the US EPA to write rules to accomplish his goal, which rules are as shown above, "Carbon Pollution Emission Guidelines..."
The carbon emission rules come on top of the MATS regulations that have already begun to close coal-fired power plants. The MATS (Mercury And Toxic Standards rule) was a crucial element in the Supreme Court's displeasure. MATS requires coal-fired power plants to reduce various emissions or shut down to avoid tremendous penalties. Lawsuits challenging the legality of MATS were filed, but the deadlines for power plant compliance arrived before the litigation was finished, "disposition" in Supreme Court parlance. Rather stupidly, the EPA crowed publicly and in writing that the legal cases had no bearing, because the EPA regulations had already forced the coal-fired power plants into submission. This, then, is an example of an end-run mentioned in point 2 above, and part of the threat mentioned in point 3 above.
Point 1: Supreme Court Divide Along Political Lines
The Order was decided 5-4, with the four Conservative Justices and the one Moderate Justice in the majority, and the four Liberal Justices in the minority. Such a split of opinion is all-too-common at the Supreme Court. It is also an important reminder that the election of a President is much more important that some realize, because the appointment of a Justice can result in such split decisions for decades. For example, if, and God forbid, our Moderate Justice Kennedy was unable to continue serving, and Obama successfully appointed a Liberal to replace him on the Court, this and all other such 5-4 decisions would turn out the other way. On such small things turns the future of our country. Justice Kennedy is in fine health and I wish him long life, health, and more Conservative voting.
The appellate court for the DC Circuit is known for liberal judges and decisions. It is quite likely that the appellants will lose in the DC Circuit, and appeal to the Supreme Court.
Point 2: Supreme Court Displeased With End Runs
This is a big issue. One displeases the Supreme Court at great peril. It goes to the very foundations of our country, that no one branch of the government would have free rein to act, but would have checks and balances by the other two branches. In addition, this EPA action invokes the famous Supreme Court case of Marbury vs Madison. EPA administrators, and even Presidents, should shudder at the very mention of that case. The Marbury case was the one in which the Supreme Court stood up and bellowed forth that THEY decide what the law says, and no one else. If one wants to lose a legal argument, simply put forth an argument - or in this case, conduct proceedings - that causes the Supreme Court to invoke Marbury v Madison. It is true that the Order in this instance makes no mention of Marbury. No mention is necessary, especially for attorneys who follow these matters. The Marbury case is lurking in the background, silent but all-powerful, in the language the Court did use: ". . . stayed pending disposition of the applicants’ petitions for review . . .and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought." Translation: this regulation is not to be implemented until the US appellate courts, including this Supreme Court via writ of certiorari, has had the full opportunity to hear, and dispose of the appellants' arguments. In short, we are no longer tolerating the implementation of regulations that, after being litigated, are not legal.
To do otherwise is to allow the EPA, and by extension, other agencies of the Federal Government, to write any rules they choose, legal or not.
As a recent article in the Wall Street Journal stated, "The (Obama) White House has been right about the success of its damn-the-law strategy—so far. Last year in Michigan v. EPA the (Supreme) Court voided a 2012 rule on mercury emissions (MATS). The chief EPA air administrator then gloated on the EPA website that the ruling didn’t matter because “the majority of power plants are already in compliance or well on their way to compliance” and “we are still on track.”" see link
This is the sort of thing that should invoke the ire of the Supreme Court.
Point 3: Supreme Court Displeased with Compliance by Threat of Illegal Regulations
This one is almost mind-boggling that we have arrived at this point. For decades, the EPA has had an enforcement ability, and has a long list of enforcement actions. This is acceptable, for those regulations that have been adjudicated and found to meet all legal standards. There needs to be, in a fair and orderly society, a means to punish those who break the laws, subject to the Constitutional limits on such punishment and the procedures under which the convictions are had. Part of the punishment is the ripple effect, or deterrence, where those who are merely contemplating breaking the law, or in this case, violating environmental regulations, are given reason to pause and re-think their prospective actions.
However, the EPA has, on occasion, used the threat of enforcement power to accomplish compliance. This use of threats is not limited to the EPA, as some state agencies also do this. In the MATS case above, Michigan v EPA, the coal-fired power plants had already begun their compliance, or achieved it, even though parts of the regulation were struck down. Other agencies will make an example out of the first few offenders that are caught, knowing that the offenders may have limited means to litigate.
The grand machinery behind vital regulations that impact all in the society must function properly. It is wrong for the EPA to write what turn out to be illegal regulations, and force compliance with those illegal regulations simply by imposing a fast-track compliance schedule that occurs before litigation can be completed. That is not the American way; that smacks of something else, something darker, perhaps totalitarian. Perhaps, and I hope this is the case, the Supreme Court Justices are aware of the total fiasco that false-alarmism climate science has been shown to be. Although, it would appear that four of the nine agree completely with the false-alarmists.
see link to "US In A Cooling Trend - Winters Much Colder" where unbiased data from pristine locations is used, and see link to "Consensus Does Not Make Wrong Science Right" where a dozen points are given that refute the claims of 97 percent of scientists agree with man-made global warming.
Note, however, that US coal-fired power plants have a short life expectancy based on coal reserves. The US has less than 20 years of coal remaining, at present consumption rates. see link to "Energy Supply In Post-Coal America"
Supreme Court Order:
The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
--- end Order
Roger E. Sowell, Esq.
Marina del Rey, California
copyright (c) 2016 by Roger Sowell, all rights reserved