The earth just had a terrible day in court.
Tuesday evening, the Supreme Court unexpectedly suspended the Obama administration’s most aggressive effort to fight climate change in a 5-4 vote. The rules, known as the “Clean Power Plan,” target greenhouse emissions from existing power plants and are expected to “decrease total emissions by a total of 16% from 2020 levels” by the time the rules take full effect in 2030. That’s only one step towards the 80 percent total reduction needed to ward of the worst effects of climate change, but it is a significant step.
And, as the Court’s party-line vote suggests, the Clean Power Plan is also a test of whether the United States has the political will to tackle climate change.
If we do not prove able to this task, the consequences will be catastrophic. In the relatively short term, the Environmental Protection Agency predicts that the Clean Power Plan will “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.” In the longer term, major cities could be swallowed by the ocean. Displaced residents will trigger a worldwide refugee crisis. Entire regions of the United States could be converted into a permanent Dust Bowl. The sheer magnitude of the catastrophe will rival any tragedy that has faced humanity since the Book of Genesis.
For the moment, the fate of the Clean Power Plan — and the question of just how capable the United States is of self-governance — remains uncertain. The Supreme Court ordered the Plan to be temporarily halted, most likely until the Court hands down an opinion on the legality of the Plan in June of 2017. If the Plan survives the next presidential election, and if it is ultimately upheld by the Court, then Tuesday’s order will only succeed in delaying the new rules.
If the Court ultimately strikes down the Plan, however, the United States could be left impotent in the face of a looming catastrophe — and not just with respect to this particular catastrophe. The states challenging the Clean Power Plan call for sweeping changes to the balance of power between the regulator and the regulated. Indeed, if some of their most aggressive arguments succeed, it’s unclear that the federal government is permitted to do much of anything at all.
The Big “Oops”
The various parties challenging the Clean Power Plan, which include multiple states and energy companies, raise several disagreements with how the EPA has interpreted its own authority to regulate under the Clean Air Act. The most difficult question presented by this case, however, is also the most absurd. A quarter-century ago, Congress enacted two conflicting amendments to the Clean Air Act. One of these amendments arguably prevents the EPA from moving forward with the Clean Power Plan, the other does not.
It is as if Schrödinger’s cat were written into the United States Code. The cat is both alive and dead. The Clean Power Plan is both legal and illegal.
To explain, the Clean Air Act contains three provisions governing emissions from existing power plans. The first requires the EPA to set standards for six pollutants that the law labels “criteria” pollutants. The second governs about 200 pollutants labeled “hazardous air pollutants” or “HAPs.” The third, which the EPA relied on when it created the Clean Power Plan, is a catch-all provision permitting regulation of “any air pollutant” that is not covered by the first two provisions.
In 1990, however, Congress passed two competing amendments to this catch-all provision. The House version of the amendment arguably can be read to prevent catch-all regulations from being applied to power plants that are already regulated under the first two provisions. The Senate version, by contrast, does not raise this issue.
Rather than reconcile this disagreement in the final bill, however, Congress simply dumped both versions of the amendment into the final bill, passed it, and sent it on to President George H.W. Bush, who signed it into law. Thus, the 1990 law both rewrites the catch-all provision in a way that arguably limits EPA’s power, and rewrites it in a different way that does not endanger the Clean Power Plan.
Despite this conflict, EPA had good reason to conclude that the House amendment does not control this case. A 2012 book co-authored by Justice Antonin Scalia concludes that the proper solution to this dilemma is simply to proceed as if the 1990 amendments never happened. “If a text contains truly irreconcilable provisions, at the same level of generality, and they have been simultaneously adopted,” Scalia wrote with his co-author Bryan Garner, “neither provision should be given effect.”
There’s also the venerable Chevron Doctrine, laid out by the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, which provides that courts should defer to a federal agency’s interpretation of an ambiguous law so long as “the agency’s answer is based on a permissible construction of the statute.” Writing for herself and two other justices in a 2014 immigration case, Justice Elena Kagan concluded that the Court should defer to an agency under Chevron after it was confronted with a “Janus-faced” statute whose text was at war with itself. Significantly, Justice Anthony Kennedy, the most likely swing vote in the Clean Power Plan case, joined Kagan’s opinion.
The War on the Presidency
This particular challenge to the Clean Power Plan does not arise in a vacuum, however. It is really only one face of a multi-faceted effort to shrink the powers of the presidency and prevent agencies like the EPA from carrying out their lawful authority. Last November, at an annual convention of the Federalist Society — a conservative legal organization whose members include several sitting senators and three Supreme Court justices — the gathered attorneys appeared obsessed with various plans to limit agency actions. As ThinkProgress wrote shortly after the convention, “this topic came up so often that one could be forgiven for assuming that this year’s convention schedule was planned by Captain Ahab, with the Obama administration’s regulations playing the role of Moby Dick.”
Some of their plans involved legislation such as the REINS Act, a bill that passed the House of Representatives on multiple occasions, and that could effectively halt all but the most minor new regulations in their entirety. Other proposals involved ambitious legal doctrines seeking to roll back Chevron or even declare agency regulation unconstitutional.
And this movement to hobble the executive branch clearly has allies on the Supreme Court. The states challenging the Clean Power plan rely heavily on a 2014 opinion by Justice Scalia suggesting that “clear congressional authority” may be necessary when an agency takes a novel regulatory action. Thus, in cases involving what they deem to be novel agency action, the states would flip Chevron on its head and require ambiguous laws to be read against the agency’s position.
Ironically, the biggest sign that the Court is poised to shift power away from the executive and toward the judiciary, however, is a case that was widely viewed as a triumphant victory for the Obama administration. The Supreme Court rejected an effort to destroy much of the Affordable Care Act in King v. Burwell. King, however, also indicated that Chevron may not apply at all to matters of “deep ‘economic and political significance.'” Thus, it’s far from clear that the Court will defer to the EPA when it launches a major effort to combat what may be the greatest looming crisis facing humanity.
The attack on the Clean Power Plan, in other words, could do far more than simply undermine this one set of regulations if it prevails in the Supreme Court. It could potentially place strict limits on federal agencies. In an era when gerrymandering and other redistricting factors make it exceedingly difficult for Democrats to capture a majority in the House of Representatives, such limits on agency action could render Democratic presidents virtually powerless. They would have little chance of gaining the congressional majority they need to govern, even if a majority of the nation supports their agenda, and would be hobbled by new limits on their power to enforce existing laws.
Returning America to the Dark Ages
Yet, despite the aggressiveness of the challengers’ arguments against executive power, these arguments aren’t even the most ambitious portion of their case against the Clean Power Plan. To the contrary, the states challenging the EPA offer a theory of states’ rights that, while difficult to parse, appears to press for limits on federal power that would call into question why we should even bother having a federal government in the first place.
The Clean Power Plan offers states a choice. States may either elect to devise their own plan to meet emissions reduction standards set by the EPA, or they can do nothing and the federal government will implement such a plan on its own. The states challenging the Clean Power Plan raise several states’ rights based objections to this arrangement, most of which are unlikely to garner much support on the Court. As the Justice Department notes in its brief, the Constitution “permit[s] congressional regulation of activities causing air or water pollution . . . that may have effects in more than one State.” Since the federal government could simply choose to regulate greenhouse emissions without any input from the states whatsoever, it is difficult to understand how the Clean Power Plan becomes more offensive to states’ rights because it gives states the option to participate in the process.
The challengers’ most aggressive argument, however, challenges the federal government’s power to enforce regulations that may impose some cost on the states down the road:
If EPA effectively mandates through a Federal Plan the retirement of coal-fired and fossil fuel-fired plants or reductions in their utilization (including by mandating the purchase of exorbitantly expensive emissions allowances), state utility and electricity regulators will have to respond in the same way as if the State itself had ordered the retirements. Likewise, if EPA orders through a Federal Plan that power-plant owners construct new capacity, state utility and electricity regulators will have to plan for and oversee its construction and integration into the electric system as if the State itself had issued the order.
If federal regulations cause someone to built a new power plant, state regulators will want to regulate that plant. And that, somehow, makes the federal regulation an incursion on states’ rights.
The problem with this argument is that, if taken seriously, it would invalidate nearly any federal program. Suppose, for example, that the federal government decided to implement a health insurance program for the elderly (we’ll call it “Medicare”). Such a program would inject new money into the health care system, which would cause new hospitals and other health care facilities to be built. These new facilities, moreover, would undoubtedly be regulated by existing state rules and state agencies — they may, for example, need to apply for permits and licenses from state-paid employees. But it’s ludicrous to suggest that, because Medicare sets in motion a chain of events that eventually imposes costs on a state, Medicare is unconstitutional.
Similarly, suppose that the federal government decided to construct a army base within a state. The base would house soldiers, who would patronize state-regulated businesses, drive on state-maintained roads and send their children to state-run schools. Over time, those roads would deteriorate faster and the state may even need to build new roads to accommodate the increased traffic. Meanwhile, the new students would increase the cost of public education. Thus, under the challengers’ theory, military bases are unconstitutional.
The challenge to the Clean Power Plan, in other words, is more than just a threat to the Obama administration’s efforts to ward off a global catastrophe. It is also one of the most ambitious attempts to rethink the role of government to reach the Supreme Court in years. And five justices thought this challenge had enough merit that they halted the Clean Power Plan before any lower court had even considered those rules.
That, in and of itself, may be the most remarkable thing about this case. As the Justice Department explains in its brief, “the danger of premature intervention in lower-court proceedings is particularly acute here, where no court has yet analyzed the merits of applicants’ claims. Applicants identify no case, and we are aware of none, in which the Court has granted a stay of an administrative rule before that rule has been reviewed by any court.”