Economy, Regs, & Taxes

Judging Obama's Clean Power Grab

The DC Circuit Court hears oral arguments on the regulatory climate agenda.

James Shott · Oct. 4, 2016

After the U.S. Supreme Court stayed implementation of the Clean Power Plan (CPP) on Feb. 9, pending judicial review, the United States District Court for the District of Columbia has begun hearings to resolve the issue. The CPP is the Obama administration’s next step to impose severe restrictions on burning fossil fuels to save the world from supposed climate change from carbon emissions. The agenda is control.

Barack Obama’s EPA explains the regulation this way: “On August 3, 2015, President Obama and EPA announced the Clean Power Plan — a historic and important step in reducing carbon pollution from power plants that takes real action on climate change. Shaped by years of unprecedented outreach and public engagement, the final Clean Power Plan is fair, flexible and designed to strengthen the fast-growing trend toward cleaner and lower-polluting American energy. With strong but achievable standards for power plants, and customized goals for states to cut the carbon pollution that is driving climate change, the Clean Power Plan provides national consistency, accountability and a level playing field while reflecting each state’s energy mix. It also shows the world that the United States is committed to leading global efforts to address climate change.”

That garbage notwithstanding, 27 states and a group of private companies and trade associations challenged the CPP on grounds that it’s exceedingly costly executive overreach. The regulation seeks to cut carbon dioxide emissions in the energy industry by over 30% and to effectively nationalize the country’s electric power grid. The regulation, which runs 1,500 pages, gives the federal government authority over how states use their natural resources.

There are significant problems with the CPP. For starters, it’s another example of what is effectively the executive branch making law, a function plainly reserved for the legislative branch by the U.S. Constitution. However, Congress frequently abdicates this responsibility, and effectively and unconstitutionally transfers it to the executive branch. The CPP also breaches the Tenth Amendment protections of the states against improper encroachment by the federal government, and it was this aspect of the CPP that prompted the Supreme Court to call a timeout.

West Virginia Attorney General Patrick Morrisey, challenging the CPP on Tenth Amendment grounds (State of West Virginia v. Environmental Protection Agency), said after the court session that the way EPA set its goals is key to the case. The Daily Signal notes that “the Clean Power Plan seeks to reverse what may be natural climate fluctuation at the cost of creating power blackouts, higher energy costs, job losses in the energy sector, and price spikes throughout the nation’s economy, including for necessities such as food and water.”

The Heritage Foundation predicts the following effects of the CPP:

  • An average annual employment shortfall of nearly 300,000 jobs;
  • A peak employment shortfall of more than one million jobs;
  • A loss of more than $2.5 trillion (inflation-adjusted) in aggregate GDP; and
  • A total income loss of more than $7,000 (inflation-adjusted) per person.

And for what great and noble end would the EPA impose this misery on the nation?

Heritage cites climatologists Paul Knappenberger and Patrick Michaels, who used the “Model for the Assessment of Greenhouse Gas Induced Climate Change” developed with support from the EPA, and estimate that the climate regulations will reduce warming by a meager 0.018 degree Celsius by 2100.

Oral arguments began last Wednesday, and Scientific American magazine reports that both sides in the case thought the EPA arguments had the edge in the nearly seven-hour court session that involved 10 of the Circuit’s 11 judges, rather than just the normal three-judge panel. Supreme Court nominee Merrick Garland recused himself from the proceedings.

“The most contentious questions focused on a big issue: how the regulation set state-specific carbon levels for power plants,” the magazine noted. “Rather than looking at what individual coal plants could do to limit greenhouse gas emissions, EPA assumed the industry as a whole could accelerate a trend away from coal and toward cleaner natural gas and renewable power.”

The EPA’s arguments predictably did not sit well with the CPP’s challengers. Lawyers representing the 27 states and the private companies allied with them “argued that EPA overstepped its authority under the Clean Air Act, moving into Congress’ turf and violating a separation of powers.”

Judge Brett Kavanaugh, a George W. Bush appointee, said that while curbing greenhouse gas emissions is a “laudable” goal, “global warming isn’t a blank check” for the administration. “I understand the frustration with Congress,” he said, but the rule is “fundamentally transforming an industry.” The executive branch does not have that authority.

The outcome is definitely uncertain, with judges expressing both support and opposition to the CPP. A decision from the DC Circuit might not come until early next year, and the Supreme Court’s final action might be delayed until 2018.

The administration’s manic, emotional and weak theory about carbon emissions threatening life as we know it brought forth a question from authors Stephen Moore and Kathleen Hartnett White in their excellent new book, “Fueling Freedom: Exposing the Mad War on Energy” — “How can carbon be a weapon of mass destruction and the basis of all known life” at the same time?

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