Scalia’s Parting Gift: Ending Obama’s Pollution Control Plan

right end of the bench. Scalia was famously focused on the Constitution, but consequently lacked any global outlook, and the other four saw no further than the parochial interests of the coal industry and state sovereignty.

Had the Court not acted when it did, the vote now would be 4-to-4 and the refusal of the lower court to grant a stay would have prevailed. A week or so and a single vote made all the difference.

Officials in Beijing and Delhi contacted by New York Times reporters have already expressed concern that, if the U.S. commitment unravels, so will the international accord. The article quotes a phone conversation with the deputy director general of a government think tank in Beijing saying, "In China domestically, there is also resistance to low-carbon policies, and they would be able to say: ‘Look, the United States doesn’t keep its word. Why make so many demands on us?’ ”.

That was the word used right and left to describe the Court's lunge to get its hands on this case before it went any further. The 27 states along with a long list of corporations and industry trade groups suing the government to block the Clean Power Plan, states with Republican governors or coal companies, had requested that the United States Court of Appeals for the District of Columbia Circuit grant a "stay" to relieve them of compliance with the EPA's requirements while the case is still in the courts. The three-judge panel was unanimous in denying the request, but it did expedite the case, scheduling the hearing of arguments for June 2.

That decision evidently signaled to the conservatives on the high court that the appeals court was unsympathetic to the plaintiffs. A decision against the states et al. would most certainly be appealed, but that would add a year during which compliance would remain in force. That would not do for the five friends of the industry at the Supreme Court, so they took the highly partisan step of overriding the appeals court to halt the EPA program.

"President Obama’s Clean Power Plan is dead and will not be resurrected", gloats an op-ed at The Wall Street Journal.

The Court normally imposes on itself strict criteria for granting a stay. Among them:

Would a public interest be served? The Court ignores the American public. In a New York Times/CBS News Poll as recent as November, 63% said they would support domestic policies limiting carbon emissions from power plants and 66% said the U.S. should join the international accord.

Is there a clear likelihood that plaintiffs will win and in the interim will be subject to irreparable harm if actions against them are allowed to proceed? But if any intimations are to be divined from the appellate court's denial of a stay, that says that the plaintiffs may lose and see their compliance validated.

Moreover, this is a stay against a government regulation before its legality has been evaluated by a lower court, which has never happened. By subverting the legal process, the Court is not adjudicating law, it is making policy.

It is a clear indication that the Supreme Court's five conservatives have already decided to strike down the Clean Power Plan once it reaches them, that they have decided quite on their own it should go no further, and that the legal process leading to that moment has been reduced to a formality.

The lawsuit aims to perpetuate an industry that has spent four decades fighting every attempt to force installation of pollution controls called for by the Clean Air Act of 1970 — an industry that, in deference to the cost, was actually granted a relaxation of the Act that permitted power plants to retrofit those controls only when significant modifications beyond “routine maintenance” were made, an industry that then gamed the system by breaking up those major modifications disguising them as routine maintenance to evade the law.

With industry-partial Republican presidents Reagan and Bush out of office, the Clinton-era EPA sued 51 power plants for violating the Clean Air Act. But immediately after Bush Jr. took office, Vice President Cheney held meetings with the nation’s energy executives and gave them the opportunity to spell out just what they wanted energy policy to be. First, the 51 suits were dropped, then the rules were relaxed still further. The energy industry would henceforward be free to make major changes — up to 20% of the cost of a plant — without installing control devices. The nation’s 17,000 power plants were allowed not only to ignore controlling pollution, but to pollute the atmosphere even more, in that much construction under that 20% umbrella could be plant expansion rather than replacement.

Freed by one administration after another from making major overhauls, with some of their plants over 50 years old, the power industry has been immensely profitable while polluting the skies for decades.

The Clean Air Act gives the federal government broad authority to regulate pollutants and the Supreme Court has made that clear several times over. In 2007 the Court ruled that carbon dioxide (CO2) is one such pollutant subject to EPA control. The Court has upheld the EPA’s authority to curb CO2 three times in the years since. And early in 2015, it ruled 6-2 that 28 Midwestern and Appalachian states are subject to EPA's cross-state air pollution rule that limits power plant emissions blown into downwind Northeastern states.

There is thus strong justification for the EPA's Clean Power Plan that the Court has now stayed. Those on the right repeatedly complain that the agency has based its authority "the dubious legal premise" of an "all-but-forgotten 1970s-era provision" of the Act — a still more dubious premise that parts of the statute passed into law by the Congress should never be used.

But now that the EPA is acting, the five justices have discovered to their dismay that the coal industry — on its way to extinction from market forces anyway — is threatened and should, contrary to conservative doctrine, be protected.

This is undeniably an activist court pursuing an agenda. Unsurprisingly, the stay was decided 5-to-4, with the five on the right in their usual alignment. The move against the EPA is of a piece with its stepping in to halt the ballot re-count in Florida and hand the presidency to George W. Bush in 2000. That was still the Rehnquist court, but Scalia, Thomas and Kennedy were on the bench then, as now, and right-left switch-hitter Sandra Day O'Connor voted with them.

Last year, it was highly unusual and suspect that the Supreme Court reached for King v. Burwell. The justices on the right flank were bothered by the 4th Circuit Court of Appeals in Virginia approving the federal payment of subsidies under the Affordable Care Act. They grabbed the case, aborting the lower court's proceedings, even though there had been no split rulings at the circuit level to justify the highest court's takeover.

And most notoriously, the justices reached for a case about no more than a corporate-funded political movie brought by the conservative advocacy organization Citizens United. The rightist justices magnified that case well out of proportion so as to realize a political goal of permitting unlimited campaign spending by corporations and unions that has infamously and perhaps irreparably damaged this democracy.

In the current case, the justices know that, were the EPA program to continue, with utility companies busily submitting plans and spending to meet requirements, it will have become embedded and effectively irreversible by the time the challenge reaches the Supreme Court. The justices also know that, even if a Republican wins the White House, he will find it problematic to reverse the EPA. A news analysis article in The Wall Street Journal makes the point that

Very few final regulations have ever been repealed by an administration—Republican or Democratic. To repeal a regulation, you have to write, and legally justify, a new regulation explaining why you are getting rid of the earlier one, a process that could take years and would be unlikely to withstand legal scrutiny, experts say.

As with King v. Burwell the justices could not risk the appellate court allowing the EPA to go forward or there would be no turning back. Feigning that their action is meant simply as a pause while the legal process runs its course should fool no one. It is unmistakably a calculated attempt to sabotage the president's plan. This is corruption as deep as a Congress that sells indulgences to industries eager to buy members with campaign contributions.

The Clean Power Plan sets an emissions target for each state and requires them to file with the EPA by this September an initial plan for how they expect to meet their objectives. How much each state must cut back its emissions varies according to what it emitted in the benchmark year of 2005.

The states have been given great leeway, with many options. The rule came after a year of review, hundreds of meetings and 4.3 million public comments delivered to EPA. Each state will be free to develop its own plan employing a mix of solutions from power plant fixes to wind and solar renewables and even state or regional markets for trading pollution permits commonly called “cap-and-trade”. If a state doesn’t produce a plan, the EPA would impose one. A Wall Street Journal op-ed by a couple of lawyers maintains that:

The EPA may have the authority to require power plants to operate more efficiently and to install reasonable emissions-reduction technologies. But nothing authorizes the agency to pick winners (solar, wind) and losers (coal) and order generation to be shifted from one to the other, disrupting billion-dollar industries in the process.

Except that the power plan does not mandate renewables, it only offers incentives.

And beyond flexibility, final plans are not required until 2018 and states are not required to be in compliance until 2022, and even then they can argue for an extension. For the states to claim irreparable harm for what they need to do now for so glacially paced a program says that the stay is unwarranted.

The action of the Court brings to mind the increasing unworkability of the America system, hide-bound by an ancient constitution that pits the states against the federal government. The 1789 constitution reserved power to the states as an inducement for them to unite. But there were only 13 of them. Now there are a hopelessly unwieldy 50. The term Balkanization has been far outstripped; we should speak of Americanization, with the 50 each wanting to go their own way, supported by Republican dogma that thinks each national program meant uniformly for all citizens should be shattered into 50 pieces and scattered onto 50 local bureaucracies — a recipe for corruption 50 times over.

Against this rigidity, it has become impossible to make national progress. One need only think of all that needs change and repair, yet nothing is done year after year.

Nor can there be global progress with other nations. The world already knows that we refuse to ratify treaties. With this action the justices have told the world that the United States cannot be trusted, that its leaders are impotent. The Paris pact was unenforceable, but it had the virtue of exposing in the future all countries who fail to meet their pledges. Two months later, that's us. With the evidence of climate change everywhere, ours is the most backward nation.