Striking down Obama’s climate legacy has its day in court

October 4, 2016 · Posted in Campaign 2016 - President, Inside the Beltway, Marita Noon, National politics, Politics, Radical Green · Comments Off on Striking down Obama’s climate legacy has its day in court 

Commentary by Marita Noon

President Obama’s flagship policy on climate change had its day in court on Tuesday, September 27. The international community is closely watching; most Americans, however, are unaware of the historic case known as the Clean Power Plan (CPP) – which according to David Rivkin, one of the attorneys arguing against the plan: “is not just to reduce emissions, but to create a new electrical system.”

For those who haven’t followed the Environmental Protection Agency’s (EPA) rule, here’s a brief history that brings us to up to date:

  • EPA published the final CPP rule in the Federal Register on October 2015.
  • More than two dozen states and a variety of industry groups and businesses immediately filed challenges against it – with a final bipartisan coalition of more than 150 entities including 27 states, 24 trade associations, 37 electric co-ops, 3 labor unions, and about a half dozen nonprofits.
  • On January 21, the U.S. Court of Appeals for the District of Columbia denied a request for a stay that would have prevented implementation of the rule until the court challenges were resolved.
  • On February 9, the Supreme Court of the U.S. (SCOTUS), in an unprecedented action, before the case was heard by the lower court, overruled, and issued a stay that delays enforcement of CPP.
  • The Court of Appeals was scheduled to hear oral arguments before a three-judge panel on June 2, but pushed them to September 27 to be heard by the full court – something the court almost never does (though for issues involving “a question of exceptional importance” procedural rules allow for the case to proceed directly to a hearing before the full appeals court).

The court, which is already fully briefed on a case before hearing the oral arguments, typically allows a maximum 60-90 minutes to hear both sides and occasionally, with an extremely complex case, will allow two hours. The oral argument phase allows the judges to interact with lawyers from both sides and with each other. However, for the CPP, the court scheduled a morning session focusing on the EPA’s authority to promulgate the rule and an afternoon session on the constitutional claims against the rule – which ended up totaling nearly 7 hours. Jeff Holmstead, a partner with Bracewell Law, representing one of the lead challengers, told me this was the only time the full court has sat all day to hear a case.

One of the issues addressed was whether or not the EPA could “exercise major transformative power without a clear statement from Congress on the issue” – with the 2014 Utility Air Regulatory Group (UARG) v. EPA determining it could not. Republican appointee Judge Brett Kavanaugh noted that the UARG scenario “sounds exactly like this one.”

Judge Thomas Griffith, a Bush appointee, questioned: “Why isn’t this debate going on in the floor of the Senate?” In a post-oral argument press conference, Senator James Inhofe (R-OK) pointed out that the debate has been held on the Senate floor in the form of cap-and-trade legislation – which has failed repeatedly over a 15-year period. Therefore, he said, the Obama administration has tried to do through regulation what the Senate wouldn’t do through legislation.

“Harvard law professor Laurence Tribe, one of Obama’s mentors,” writes the Dallas Morning News: “made a star appearance to argue that the Clean Power Plan is unconstitutional.”

Judge Karen LeCraft Henderson, a Bush appointee, concluded: “You have given us all we need and more, perhaps, to work on it.”

The day in court featured many of the nation’s best oral advocates and both sides feel good about how the case was presented.

For the challengers (who call CPP “an unlawful power grab”), West Virginia Attorney General Patrick Morrisey, who along with Texas AG Ken Paxton, co-lead the case, reported: “We said (then) that we were looking forward to having our day in court on the merits. Today was that day. I think that the collective coalition was able to put very strong legal arguments forward, as to why this regulation is unlawful, and why it should be set aside.”

But the case has its proponents, too, and they, also, left feeling optimistic. In a blog post for the Environmental Defense Fund, Martha Roberts wrote about what she observed in the courtroom: “The judges today were prepared and engaged. They asked sharply probing questions of all sides. But the big news is that a majority of judges appeared receptive to arguments in support of the Clean Power Plan.” She concluded that she’s confident “that climate protection can win the day.”

The Wall Street Journal (WSJ) summarized the session saying that stakeholders on all sides were left “parsing questions and reactions, and searching for signs of which way the judges are leaning.” U.S. News reported: “The judges repeatedly interrupted the lawyers for both sides to ask pointed questions about the legal underpinnings of their positions.”

The decision, which is not expected for several months, may come down to the ideological make-up of the court: 6 of the judges were appointed by Democrat presidents and 4 by Republicans. Though, according to WSJ, Obama appointee Judge Patricia Millet “expressed concern that the administration was in effect requiring power plants to subsidize companies competing with them for electricity demand.” She offered hope to the challengers when she said: “That seems to be quite different from traditional regulation.” Additionally, in his opinion published in the Washington Post, Constitutional law professor Jonathan Adler, stated: “Some of the early reports indicate that several Democratic nominees posed tough questions to the attorney defending the EPA.”

Now, the judges will deliberate and discuss. Whatever decision they come to, experts agree that the losing side will appeal and that the case will end up in front of the Supreme Court – most likely in the 2017/2018 session with a decision possible as late as June 2018. There, the ultimate result really rests in the presidential election, as the current SCOTUS make up will be changed with the addition of the ninth Justice, who will be appointed by the November 8 winner – and that Justice will reflect the new president’s ideology.

Hillary Clinton has promised to continue Obama’s climate change policies while Donald Trump has announced he’ll rescind the CPP and cancel the Paris Climate Agreement.

The CPP is about more than the higher electricity costs and decreased grid reliability, which results from heavy reliance on wind and solar energy as CPP requires, and, as the South Australian experiment proves, doesn’t work. It has far-reaching impacts. WSJ states: “Even a partial rebuke of the Clean Power Plan could make it impossible for the U.S. to hit the goals Mr. Obama pledged in the Paris climate deal.” With Obama’s climate legacy at stake, the international community is paying close attention.

And Americans should be. Our energy stability hangs in the balance.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc., and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). She hosts a weekly radio program: America’s Voice for Energy – which expands on the content of her weekly column. Follow her @EnergyRabbit.

Odds and ends number 75

It’s been almost three years since this was a regular feature on my site, but it appears I may have to bring this back to deal with all the stuff that I receive and deem to be somewhat newsworthy – just not enough to devote an entire post to. Ideally I can use it to clean out an e-mail box that gets too full of stuff that otherwise sits for awhile. As always, we’ll see how it goes but it’s been long enough that I had to go look up where I was in the series.

If you recall when I discussed the state convention last week, Maryland National Committeeman Louis Pope was pleased with the national GOP’s fiscal situation and it was also announced that the state party was finally out of debt. So it’s interesting to find out our national Democratic counterparts are doing what they do best: spending money they don’t have. Even with Martin O’Malley still in the race, they can’t just raise taxes to cover the difference.

It’s doubtful that Hillary’s campaign will be hurt, but Democrats are also salivating over retaking the Senate as the seats won by the GOP in the first TEA Party wave of 2010 come up for re-election in a Presidential year. That’s where a shortfall could come into play.

Speaking of the state convention, the sponsor of the amendment which actually stripped the voting rights of three auxiliary organizations now questions his own standing in introducing the amendment in the first place. It’s the ultimate in do-overs, but we have to ask whether he would have been as honest had the proposal passed.

Now Tony Campbell wants a special convention to right what was made wrong.

In discussing this with a former Chair, one thing that I learned is that seldom does an individual vote matter on the Executive Committee – there is rarely a time when a vote is close enough to make a difference. The only instance he could think of where a vote was close like that was the vote of no confidence in former Chair Jim Pelura back in 2009. That was still a relatively lopsided vote, 20 to 10, but the county chairs only voted 14 to 10. It was the six leadership and auxiliary votes that padded the margin.

(It’s also a rare time of late that I cite the balky and ad-bloated Red Maryland site, but you’ll notice the reason for the exception.)

So I think we should deal with this in due course. Perhaps we can do like we do for government “shutdowns” and give the auxiliary organizations their votes later as back votes once we rectify the situation, as I know we will.

Staying with the Maryland GOP, a few days back I received a list of 61 Republican leaders throughout the state who are backing Delegate Kathy Szeliga in her U.S. Senate bid. As you may expect, there are a lot of General Assembly members on the list: locally it includes Delegates Christopher Adams, Carl Anderton, Mary Beth Carozza, and Charles Otto as well as Senator Addie Eckardt and County Executive Bob Culver. 42 of 50 Republican Delegates and 13 of 14 GOP Senators are on the list. (George Edwards of western Maryland is the recalcitrant Senator.)

But I noticed one name among the local delegation was missing: it looks like Delegate Johnny Mautz has kept his powder dry for the moment. I can’t figure out if he just didn’t want to sign or if he’s backing someone else – with his Congressional staffer connections, he would be a logical backer of Richard Douglas. Just grist for the mill.

I haven’t even started to make my mind up on the race, but I will say Kathy has a long way to go to get my support – if only because her campaign website is still bare-bones a couple weeks after she jumped into the fray. That’s the type of lack of attention to detail that can sink a campaign.

Ethanol hasn’t been in the news much lately, but I thought it was worth pointing out that one of my favorite energy writers, Marita Noon, recently detailed how Ben Carson has moved to the right side of the issue. API’s Linda Rozett adds her two cents as well, making the case that dairy subsidies didn’t work out well so neither are ethanol carveouts creating the desired effects. Look, when we have plenty of oil there’s no real need to use food for fuel, despite what the corn growers who are enjoying the artificial price support may say.

Of course, people like me who believe food shouldn’t be used as fuel tend to fall into the category of climate change “deniers.” The folks at Organizing Against America For Action are excited about events in Paris. (Not the Friday the 13th ones, although this could be just as detrimental to millions.) In an e-mail exhorting supporters to “call out” skeptics, they say:

Remember when getting an elected official to even mention carbon pollution or climate change was a big deal? We’ve come a long way.

Today, the momentum for action has never been greater. Climate change denial in America is at an all-time low, and hundreds of companies have come out to support rules on power plant pollution. As if that wasn’t enough, religious leaders like Pope Francis are insisting that there is a moral obligation to address climate change.

In just two weeks, more than 160 nations, representing more than 90 percent of the world’s carbon pollution, are joining together for an international conference to tackle climate change, while we still can.

I dare them to call me out. YOU ARE A FRAUD. We’ve been holding steady on global temperature since the turn of the millennium, and if anything the indications are we are getting colder, not warmer. Throttling back the economies of the developed world will only weaken the rest of the planet.

Yet there are people talking common sense:

Climate change deniers are trying to spoil this big moment by undermining America’s commitment to act on climate change.

Some senators, like James Inhofe and Mitch McConnell, are going out of their way to undermine American commitments. Senator Inhofe, famous for bringing a snowball onto the Senate floor as proof that climate change doesn’t exist, has committed to crash the talks and be a “one-man truth squad,” telling the international negotiators how little he believes in climate science.

Senator Inhofe isn’t alone. Back at home, climate change deniers in both chambers of Congress are working to overturn the carbon pollution standards for power plants.

Good. I hope they succeed in overturning the job-killing restrictions. Just call me the Republican uncle, except I can do more than recite talking points.

Killing – not of jobs, but of fellow public housing residents – may not be out of the realm of the 6,000 drug convicts the Obama administration is releasing, and thanks to Judicial Watch we also know that they will be welcomed into public housing. I will grant that probably 99% of them will be more or less model citizens, but that still leaves a few dozen miscreants to cause trouble. I think Judicial Watch has reason to be concerned, as do those residents who get them as neighbors. Perhaps the same sort of notice granted when sex offenders move nearby is in order, at least to start. Call it a probationary period.

Finally, let’s end on a happier note. I wrote about a similar event last year, but over the weekend we were encouraged to participate in the Made in the USA Christmas Challenge by the Patriot Voices advocacy group. While most of the electronics we use are made overseas, it is possible to purchase gifts made in America. (One familiar group has some suggestions.)

It’s worth noting, though – as of this writing, just 116 have signed up at Patriot Voices. That’s not very many patriots, so hopefully more people than that are conscious of the advantages of supporting our businesses.

So there you have it – you are more informed and I have a clean inbox. I love it when a plan comes together.

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