EPA doesn’t actually have legal authority to impose this [Clean Power Plan], least of all under the obscure statutory provision under which it is proceeding. The agency’s brave contention to the contrary is just for show. EPA’s true m.o. is to promise cooperating states all the “flexibility” in the world, while hinting that it just might hammer hold-out states until the lights go out—literally, as it were. To see the plan to fruition, EPA needs no statutory authority, only time—say, some two years from the publication of the rule to its invalidation by the Supreme Court. At that point, threats and inducements will have created irreversible facts on the ground. No court, no president, and no Congress will be able to unscramble this particular omelet. Energy-producing companies and states comprehend this all too well. It’s why they requested the extraordinary, never-before-granted form of relief in Murray Energy [that the D.C. Circuit just refused them].
And speaking of business models: the plan at issue exemplifies the administration’s. Putting aside international “reset buttons,” “red lines,” troop withdrawals, and disarmament agreements, the administration’s entire hoped-for legacy, on matters from immigration DREAM acts to reversing the ocean tides, consists of grand but legally unauthorized initiatives. And we have it on high authority that it doesn’t matter. The Affordable Care Act, President Obama declared this week, is “woven into the fabric of America” and of “how we care for one another.” To demand some legal authority for all the knitting is worse than pointless; it is “deeply cynical.”
Trust the President on the subject of cynicism: he’s the expert.
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