Legal and political updates from the front lines of the Clean Power Plan battles

President Barack Obama has recently made it quite clear that achieving a lasting legacy on climate change is one of his top remaining priorities (see this Vice interview of the president, from 2 minutes to 6 minutes). The Clean Power Plan is the centerpiece of that effort—the signature domestic policy that allows the country to project leadership in international negotiations. The president and EPA Administrator Gina McCarthy express overwhelming confidence that this new regulatory regime for America’s power sector will come into effect, withstand the slings and arrows of outrageous opponents without needing any major alterations, and then structure greenhouse gas policy in the country for the next fifteen years. Their confidence may yet be proven justified, but we are just now beginning to see the intensity of the legal and political resistance to the Clean Power Plan—and we are still at the proposed rule stage of the rulemaking process.

Early legal challenges a shot across EPA’s bow

That means that legal challenges to the rule—which, because of a special jurisdictional provision in the Clean Air Act, will all take place in the D.C. Circuit Court of Appeals—are mostly premature at this stage. Remarkably, that hasn’t stopped the plan’s opponents from mounting a serious attempt to knock the Clean Power Plan out before it ever sees the light of day. The Clean Power Plan had its first day in court on Thursday, April 16, when a three-judge panel heard arguments in West Virginia v. EPA. Fifteen states and a handful of energy companies argued that the EPA is totally precluded from issuing regulations under Clean Air Act § 111(d), the purported source of legal authority for the Clean Power Plan, because it has already regulated power plants under § 112, and at least one version of the law says that the EPA can’t do both. (“One version of the law,” you ask? How many can there possibly be? Well, in this case, there are plausibly two different ones that emerged from the House and Senate and were never properly reconciled; the U.S. Code thus diverges from the United States Statutes at Large. Suffice it to say that this is enough to make connoisseurs of legislative procedure very happy, and the rest of us very confused.) The petitioners’ lawyers (including famed Professor Laurence Tribe) made an impressive showing, offering a whole array of reasons why the rule should be blocked immediately.

The court will very likely dismiss this challenge as out of turn. Two of the three judges stressed how uncomfortable they were in considering any kind of challenge to a rule that has merely been proposed rather than finalized, especially worrying that wading into one case at the proposed rule stage would take them into a “morass” of future litigants demanding the same. Those judges also expressed doubt that acting at the proposed rule stage would matter much, given the EPA’s promises that the final rule will come out this summer, and EPA’s lawyers stood by that timetable.

West Virginia v. EPA is thus mainly a shot across the agency’s bow, a sign of great struggles to come once states confront finalized rules. Those rules will have different efficiency requirements for every state based on a number of factors, and regardless of how adept the EPA proves to be in responding to worries about disparities in the proposed rule in its final rule, it is a certainty that many states will remain committed to combatting the rule through a variety of legal challenges. Those challenges will not have the current case’s procedural debility, and, the EPA’s protestations notwithstanding, they will advance a number of meritorious legal arguments. Even states not fundamentally opposed to the plan may find particularistic reasons to oppose the EPA’s final choices. Clean Power Plan litigation is a growth industry.

A partisan political battle

As the legal generals probe each other’s positions, the political battle front is also shaping up. For now, the battle lines break extremely neatly along partisan lines—even by the current standards of hyperpolarization. In part that means that the battle becomes an interbranch conflict between the Republican Congress and Democratic Executive Branch, but everyone assumes that those sides can effectively dig into their trenches for now. As a result, the more active battle front is between the EPA and states with Republican governors (or attorneys general). This federalism struggle has been promoted most vocally by Senate Majority Leader Mitch McConnell, who is pushing “just say no” as a winning political strategy for states. (Attempts to somehow disqualify McConnell’s play on legal grounds miss the point.) From his perspective, it will at best force a highly public confrontation over policies that Republicans think are substantively inefficient and, more importantly, political losers, and this will lead to abandonment or major alteration. At worst, it will mean that the EPA has to run everything from Washington, making it easy for resisters in the states to disclaim any responsibility and score political points by bashing out-of-touch bureaucrats.

The Clean Air Act relies on a structure known as “cooperative federalism,” which means that the EPA sets requirements but state environmental agencies actually flesh out specific plans for pollution reduction. In normal circumstances, this is genuinely cooperative, as states prefer to keep some degree of autonomy in crafting policy specifics to their particular circumstances while simultaneously doing what is necessary to gain the EPA’s approval. There has never been an instance in which large numbers of states simply refuse to participate in this process, as they may well now do in the instance of greenhouse gas emissions from power plants, and so it is difficult to say how this conflict will play out.

For a number of commentators sympathetic to the Clean Power Plan, even asking this question is offensive, not only to efforts to combat climate change but also to the rule of law. Former EPA administrator Christine Todd Whitman, for example, argues that if states refuse to formulate their own reduction plans they will “open Pandora’s box when it comes to legislation and our rule of law,” shaking the very foundations of our society. In short, this is nonsense. As Jonathan Adler explains, there is a well-established constitutional principle of anti-commandeering that says that the federal government has no power to directly order state officials to engage in affirmative actions.

The EPA has leverage

That does not mean that the EPA is without leverage, however. First, the Clean Air Act allows the imposition of sanctions (in the form of withheld federal highway spending) on states that refuse to adequately work toward acceptable implementation plans. Second, the EPA can impose a federally administered Federal Implementation Plan (FIP), which it has indicated will be onerous for power plants compared to plans states are likely to devise (in part because states possess more diverse powers to pursue less carbon-intensive economies and can rely on at-the-plant emissions reductions less). It’s hard to know exactly how an imposition of a FIP would play out—or how fast, a crucial question given 2020 compliance targets—but it is fair to assume that it would escalate both the political and the legal conflicts to new heights.

The legal and political battles predicted here will swallow enormous amounts of manpower in the coming years: at the EPA, in state utilities regulators (whose concerns about reliability I previously noted), in state environmental agencies (whose objections to the Clean Power Plan I will document in an upcoming report), and in the private sector. More and more, those who find themselves participating in these battles find it difficult to imagine any other reality. Environmentalists, especially, make it seem as though the only real reason anyone opposes the Clean Power Plan is because they hope to see U.S. climate change policy—and probably global efforts to combat climate change—stagnate and fail.

But it is delusional to imagine all parties joining in praise of the Clean Power Plan and thereby allowing it to work as the EPA hopes it can. First, because the plan really does have some very serious legal problems that some companies will look to expose. Second, because power companies are, well, powerful and can’t be expected to simply accede to a complicated and (as they see it) onerous regulatory regime without a fight. Third, because a politically sustainable climate change strategy uniformly opposed by one of the country’s two major political parties is unimaginable given any sense of realism. It is not too late to chart a very different course, one that could get a significant number of Republican supporters (if probably not most): most notably, a carbon tax. Alas, digging deeper trenches remains the far more popular course for now.