Court’s ‘Power Plan’ stay win for political process
The U.S. Supreme Court’s stay in early February of the Obama administration’s “Clean Power Plan” was a victory for the coalfueled electricity industry, but it was a broader victory for the Constitution and a stern rebuke to the Obama administration’s attempts to circumvent our principles of separation of power.
Presidents trying to expand their power is a story as old as our country. Executives have an agenda they want to see enacted, and face multiple constitutional barriers to seeing it accomplished. It’s frustrating, and it only heightens the temptation to act unilaterally through executive actions. As Clinton administration adviser Paul Begala once said about executive orders, “Stroke of the pen. Law of the land. Kind of cool.”
This strategy may seem con- venient to those advising a president, but the long-term implications should be concerning for anyone who cares about the Constitution. And unfortunately, President Obama has taken it further than his predecessors.
As a candidate, Barack Obama made his plans for America’s coal industry abundantly clear. In explaining how his favored cap-and-trade energy plan would work, he said in 2008, “If somebody wants to build a coalfired power plant, they can. It’s just that it will bankrupt them.” As a consequence, he added later, “electricity rates would necessarily skyrocket.”
Not surprisingly, the president’s plan was difficult to pass in Congress. The U.S. House narrowly approved it by a 219-212 vote, but then-Senate Majority Leader Harry Reid declined to bring up the bill in the Senate. This is likely due to the bill’s unpopularity with the public. A 2009 Pew Research poll found that Americans who were familiar with the legislation opposed it by a 2 to 1 margin.
Rather than work on consensus building or compromise, the president instead sought to impose his agenda via regulation; it’s a tactic he had used frequently before, imposing a number of expensive and excessive regulations on the electricity sector designed to make coalbased electricity more expensive.
The particular danger with the Obama administration’s approach was that the Environmental Protection Agency was imposing these regulations largely without regard to their statutory authority. While states can and did challenge this EPA overreach, the judicial process takes years to complete. During that time, states and industry still must proceed as if the regulation will be upheld — and thus must make expensive and often irreversible decisions to retrofit or shutter certain power plants.
As a result, the EPA may lose a court case but still achieve its objective. This is what happened recently with one Clean Air Act rule. In Michigan v. EPA, the Supreme Court found the rule to be illegal, but not before the electricity sector had spent tens of billions of dollars to comply with it. Despite the Supreme Court ruling against the regulation, a lower court later allowed the rule to remain in effect due in part to the massive investments already made in complying with it.
The EPA doubtlessly made the same calculation when it attempted to regulate carbon emissions from power plants. The agency based its authority to do this from the Clean Air Act, despite the fact that this authority does not exist in the law. Still, any challenge to the plan was likely to take years and states would still need to work toward compliance in the meantime. Once many of these coal-fueled power plants are shuttered, it becomes too difficult, complex and expensive for utilities to restart them. Again, even if the EPA loses; it wins.
By exploiting the deliberate nature of the courts, the administration has been usurping the court’s power of judicial review and rendering its decisions largely moot. Fortunately, the Supreme Court appears to have recognized this. The court’s stay of the EPA’s carbon regulations is a timeout, ensuring that states don’t incur expensive compliance costs until questions about the legality of the EPA’s actions are answered by the courts.
Most important, the decision is a message to future presidents — that enacting their agenda will require building consensus or making compromises, both with Congress and with the American people. For many Americans frustrated with the stalemate in Washington, this will be welcome news.
The Supreme Court handed a victory not to an industry, but to a country.