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U.S. Constitution Title: SCOTUS Stays EPA Clean Power Plan: The Good News And The Bad SCOTUS Stays EPA Clean Power Plan: The Good News And The Bad JV DeLong, In August 2015, President Barack Obama announced the first ever limits on U.S. power plant emissions. (JIM WATSON/AFP/Getty Images) The Supreme Court voted 5-4 to stay EPA’s Clean Power Plan (CPP) pending final resolution of the appeals by SCOTUS. The D.C. Circuit had denied a stay in late January, in an order of the “shut up, he explained” style. It said only that “petitioners have not satisfied the stringent requirements for a stay pending court review,” and added a supporting cite to a case of dubious relevance. So the immediate Internet reaction to the SCOTUS decision was one of surprise, and, on the conservative side, pleasure. Such a summary reversal of the lower court is unusual, and the Justices gave even less explanation than did the D.C. Circuit, so its reasons remain speculative, especially because the legal arguments are complicated and accessible only to those who have spent their lives studying the complexities of the Clean Air Act and administrative law generally. The best explanation, or at least the most optimistic, is that five Justices see the EPA for what it is: a corrupt agency that has been captured by Big Green, which is an unholy Bootleggers and Baptists coalition of ideologues, crony socialists, and academic looters. The agency is using a dubious theory of climate change and an aggressive interpretation of the law to justify a huge and unpredictable restructuring of the nation’s electrical generation system, which is sometimes called “the largest and most complex machine ever made,” and which may not survive its collision with EPA. The agency is also expert at applying Saul Alinsky’s Rules for Radicals, especially No. 3 (“Wherever possible go outside of the experience of the enemy”) and No. 4 (“Make the enemy live up to their own book of rules”). Administrative law is based on assumptions about the good faith and competence of government agencies. As a result, courts cannot deal with progressive political agencies that will say or do anything to further the narrative and the economic well-being of their clients and political contributors, that have lost any semblance of an internal institutional conscience, and that close ranks to defend even outright fraud. The judges defer to the agency’s factual and scientific conclusions, however fanciful, and place impossible burdens of proof on objectors. Recommended by Forbes The Clean Power Plan, 47 States And 560+ Trillion Options Supreme Court To EPA: Fool Me Once EPA Ploughs Ahead With $9.6 Billion Mercury Rule, Despite Supreme Court's ... E&E Legal On The Capture Of EPA MOST POPULAR Photos: The Richest Person In Every State TRENDING ON FACEBOOK Unless It Changes, Capitalism Will Starve Humanity By 2050 MOST POPULAR Photos: 15 High-Paying Flexible Jobs EPA also practices government by fait accompli. In their petition for a stay of the CPP rule, the utilities described the aftermath of a Supreme Court victory they won last year: The day after [the Supreme] Court ruled . . . that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired plants . . . EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance.’ Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. . . . In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule, . . . and then successfully used that unlawfully-mandated-compliance to keep the rule in place even after this Court declared that the agency had violated the law. In the CPP litigation, it is hard to avoid the conclusion that EPA had the same game plan in mind – force expensive compliance during the leisurely course of appeal, and then contend that things have become so convoluted that there is no going back. It is the strategy of ObamaCare and Dodd-Frank, not just of EPA. So the good news is that five Justices seem to be on to this game. The bad news is that the Court’s four horsepersons of progressivism (Breyer, Sotomayor, Kagan, Ginsburg) are either not onto the game, taking at face value all the classic bromides about agency integrity, or – worse – are onto the game and do not care. In either case, they regard it as just ducky for an agency to use ambiguous laws and dodgy fact-finding to impose incredible burdens on the society and the economy. Two larger lessons should be drawn. The first is to reinforce the extreme importance of the next few Supreme Court appointments. One more progressive Justice could doom all hope of effective judicial supervision of EPA and other captured agencies. The second lesson is the sad state of administrative law, which remains mired in unrealistic assumptions about agencies, their staffs, and their incentives. An administrative law that never heard of Public Choice theory or Bootleggers and Baptists is, and will continue to be, a travesty. Post Comment Private Reply Ignore Thread |
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