What do Pope Francis and National Public Radio have in common? According to Republican members of a powerful appeals court, they both demonstrate why the Obama administration’s plans to combat global warming are illegal.
Confused? Don’t worry, because there is nothing about the seemingly interminable arguments in West Virginia v. United States Environmental Protection Agency that is simple. The coal industry and its allies hired enough attorneys to crew a small armada of sailing frigates. On Tuesday, the United States Court of Appeals for the District of Columbia Circuit heard their arguments for why the EPA’s most ambitious effort to fight climate change should be struck down — and the court’s hearing was conducted with the sort of efficiency normally reserved for Humvees and faculty meetings. A scheduled three-and-a-half hours of oral arguments stretched for at least six. By the end, many of the judges sat in spent silence, their brains swimming with obscure details like whether EPA’s decision to halt mercury pollution somehow diminishes its power to reduce carbon emissions.
So let’s cut to the chase. If you don’t want to learn the interminable details of how dozens of lawyers spent their Tuesday pondering every word uttered by a panel of ten judges, the punch line is that the government is probably going to win. These ten judges include six Democratic appointees and four Republican appointees. There were few signs that any one of them is going to cross over to vote with the other side (although there is an off chance that EPA could win 7–3). When everything is said and done, EPA’s Clean Power Plan will probably survive its seemingly never-ending day in court.
Now, for the rest of you nerds who want to hear more, here’s what Pope Francis has to do with NPR.
His Holiness the Bishop of Rome ponders the fate of the Earth
Though lawyers on both sides discussed many, many issues at the DC Circuit’s hearing, the outcome of West Virginia is likely to turn on two questions: 1) how to read a specific provision of the Clean Air Act, and 2) who should win if the judges have any doubt about how that provision should be read.
The Clean Air Act instructs the EPA to set “standards of performance for any existing source for any air pollutant.” These standards, moreover, must reflect “the degree of emission limitation achievable through the application of the best system of emission reduction” which, taking into account factors such as cost and existing technology, EPA determines can be achieved.
Pursuant to this power, EPA determined that the “best system of emission reduction” would be to effectively shift power away from dirty methods of generating electricity, such as coal, and toward relatively cleaner sources, such as gas, solar, and electric. Accordingly, it set emissions reduction targets that, absent significant new technological developments, can most cost-effectively be achieved by shifting power generation toward these cleaner sources.
The coal companies and their allies claim that this is not allowed. They claim that the Clean Air Act permits EPA to change the way a particular plant operates — it can force a coal plant to use technology that reduces emissions, for example — but it cannot shift electricity generation from coal plants to solar plants.
Yet, as several of the more liberal members of the DC Circuit pointed out, this argument runs into a pretty serious problem — there doesn’t seem to be much, if any, language in the Clear Air Act that supports this distinction.
“The text,” Judge Patricia Millett told Peter Keisler, one of the lawyers challenging the Clean Power Plan, “does not make that distinction that you are making.” Judge Sri Srinivasan was equally blunt, asking Keisler to point to which specific words in the Clean Air Act actually support his clients’ case. Shortly after Keisler attempted to answer Srinivasan’s question, Judge Nina Pillard piled on with a stone cold response.
“Do you have anything stronger?”
Yet, while the more liberal judges viewed this as a fairly routine (if complicated) question of statutory interpretation, the conservatives gazed at the Clean Power Plan and saw a behemoth of federal power.
What this all has to do with Pope Francis
Not long after Justice Department attorney Eric Hostetler took the podium to argue his side of the case, he was tag-teamed by Judges Thomas Griffith and Brett Kavanaugh, both George W. Bush appointees. Griffith and Kavanaugh quickly fixated on a passage penned by Justice Antonin Scalia in a 2014 environmental case which offers the coal companies their best shot at killing the EPA’s plan.
“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” Scalia wrote in Utility Air Regulatory Group v. EPA.
To the court’s most conservative members, it was self-evident that Scalia’s words control this case. “This is a huge case!” Kavanaugh proclaimed. It is “obvious” this case is big league. Just use your “common sense.”
Judge Janice Rogers Brown, one of the most conservative judges serving on any American court, pointed to a White House press release which touted the Clean Power Plan as transformative. Judge Griffith noted that a segment about the EPA’s plan “was on NPR this morning,” something he viewed as a clear sign that the case must be hugely politically significant.
Even “the Pope’s involved” in the fight against climate change, Kavanaugh remarked. See, it’s super, duper important!
What followed was a firefight over whether this was actually the sort of case Scalia described in Utility Air. Hostetler pointed out that EPA routinely regulates pollution, often in ways very similar to the Clean Power Plan, so while there’s certainly a lot of interest in this case, it’s not anything all that extraordinary as a legal matter. Judge Pillard noted that the amount of money at stake in West Virginia is orders of magnitude less than the amount at stake in Utility Air.
And, in any event, Hostetler emphasized in an segment of his argument that could have been titled “Can We Get Back To What The Law Actually Says? Please?” the Clean Air Act’s text supports EPA’s position. “The word ‘system,’” as it is used in the Act, “is a capacious word.”
This whole debate over whether West Virginia is of papal importance or merely an ordinary exercise of EPA’s power matters because the Clean Power Plan sits at the heart of a fairly incoherent area of the Supreme Court’s precedents.
In its widely-cited decision in Chevron v. National Resources Defense Council, the Supreme Court held that courts should typically defer to agencies when those agencies interpret ambiguous laws. Agencies have more expertise in the areas they regulate than judges, and agency officials are ultimately accountable to a person who is elected — the president — in a way that judges are not. So if the law is unclear, the agency is more likely to get it right, and it has more legitimacy to make hard decisions about policy.
The Court, however, has inconsistently suggested that Chevron should not apply in the kind of hugely significant cases Scalia referenced in Utility Air — and these suggestions became much more frequent in recent years as a conservative Supreme Court confronted agencies led by President Obama’s appointees.
The result is that plausible arguments can be made that Chevron should apply to the Clean Power Plan, a result which all but ensures that EPA prevails. And plausible arguments can also be made that a kind of anti-Chevron applies — that is, that any uncertainty about what the Clean Air Act says much be resolved against the Obama administration.
If the courts ultimately decide that the armies of anti-Chevron win this doctrinal war, the result will be a much weaker president. Indeed, in an age of congressional dysfunction, such a decision would effectively hobble the president’s ability to do much at all to implement anything but the least ambitious parts of their agenda. Once an agency tried to act in any kind of significant way, that agency’s powers would immediately recede.
The good news for President Obama, for future presidents, and ultimately, for the Earth, is that it is very unlikely that a majority of the DC Circuit is convinced that anti-Chevron applies here even if the Pope does really care about climate change.
Should the coal companies ultimately prevail in this case, however, their victory will not only have profound implications for America’s ability to confront climate change, it could fundamentally transform the nature of the modern presidency.