Bench Memos

The Wall Street Journal on the Clean Power #Fail

The Wall Street Journal posted an editorial this week (paywall) interpreting the Supreme Court’s stay on Tuesday of the so-called “Clean Power Plan” rules. The CPP rules, which Phil Kerpen has dubbed a “Clean Power Grab,” are designed to kill an entire sector of the energy industry by imposing onerous regulatory burdens on the states.

Tuesday’s stay indicates that the “Clean Power Grab” will probably end up being a “Clean Power Fail,” since a majority of the court apparently thinks that the challengers have a substantial likelihood of success on the merits. The editorial explains:

On Tuesday the High Court put a legal stay on the Administration’s rules to control carbon emissions in the states, known as the Clean Power Plan, pending judicial review. Challengers seeking stays must overcome fearsome legal criteria, and they are rarely granted.

Yet for the first time five Justices blocked what’s known as a “generally applicable regulation.” The one-page order prohibits the Environmental Protection Agency from enforcing the Clean Power Plan until the D.C. Circuit Court of Appeals rules on the merits, presumably with the Supreme Court as the final word.

As the Journal points out, the court apparently took notice of the EPA’s endzone dance last year about how the Court’s decision in Michigan v. EPA (2015) was too late to provide the victims with any relief, since the costs of complying with the illegal rule had already been imposed. Thus:

The stay is an important rebuke to the political method of the anticarbon activists in the EPA and White House. Ditching fossils fuels will be a capital-intensive and generation-long transition, to the extent it is possible, and states must submit compliance plans as soon as this September that are supposed to last through 2030, or be subject to a federal takeover.

The legal challenges will take years, but the EPA hopes to engineer a fait accompli by bullrushing the states into making permanent revisions immediately. Once the Clean Power Plan starts, it becomes self-executing. If the EPA loses down the road, it will laugh that the opinion is too late and thus pointless.

* * *

The stay suggests that a majority of the Court won’t allow this deliberate gaming of the slow pace of the legal process to become de facto immunity for anything the EPA favors. It’s especially notable because courts tend to be highly deferential to executive regulation.

Finally, the Journal also gives credit where it is due:

Credit here goes to some rebellious state Attorneys General like West Virginia’s Patrick Morrisey who haven’t acquiesced when Mr. Obama’s government has violated sovereign state prerogatives. Oklahoma AG Scott Pruitt deserves particular credit for developing the federalist arguments and exposing how the Clean Power Plan commandeers states.

Read the whole thing.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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