Dream Weaver in Chief

This past Tuesday a panel of the D.C. Circuit handed down its decision in In re Murray Energy, a challenge to the Environmental Protection Agency’s proposed “Clean Power” rule. The panel unanimously rejected the challenge. Statutory review authority, Judge Kavanaugh (joined by Judge Griffith) observed in his majority opinion, extends only to final agency rules, not (as here) to proposed rules. For that obvious reason the challengers had sought to invoke the court’s jurisdiction under the All Writs Act (and two other, more involved theories). The court rejected those arguments as well. In a separate concurrence, Judge Henderson criticized the majority’s “cramped” view of the court’s equitable powers but in the end she, too, rejected the petitioners’ arguments.

No great surprise and not much to see here by way of AdLaw, except perhaps for specialists. But the matter will be back before the court once EPA finalizes the rule, probably by August. And it’s worth paying attention: the rule at issue is the centerpiece of the administration’s design to subject the entire energy sector, and with it the economy at large, to its grand climate change ambitions.

The Clean Power Plan, like many existing environmental programs, is a “cooperative federalism” venture: it would have to be implemented principally by states, with direct federal administration as a fallback. The glitch is, not all states are eager to comply. Alongside Murray Energy, petitioners in this case included a bunch of energy-producing states, led by West Virginia. On the other side, EPA’s position was supported by a gaggle of other states, including (as usual in these sorts of cases) California, Connecticut, New York, and Massachusetts. The federalism divide doesn’t run between the Evil Protection Agency and the virtuous states; it runs between and among states. California et al have a high-tax, high-cost business model, which they can’t afford unless the feds send them boat loads of cash and, moreover, raise the energy-producing rivals’ cost—which is what this so-called “climate” plan is actually about.

Speaking of “actually”: EPA doesn’t actually have legal authority to impose this plan, least of all under the obscure statutory provision under which it is proceeding. The agency’s brave contention to the contrary is just for show. EPA’s true m.o. is to promise cooperating states all the “flexibility” in the world, while hinting that it just might hammer hold-out states until the lights go out—literally, as it were. To see the plan to fruition, EPA needs no statutory authority, only time—say, some two years from the publication of the rule to its invalidation by the Supreme Court. At that point, threats and inducements will have created irreversible facts on the ground. No court, no president, and no Congress will be able to unscramble this particular omelet. Energy-producing companies and states comprehend this all too well. It’s why they requested the extraordinary, never-before-granted form of relief in Murray Energy.

And speaking of business models: the plan at issue exemplifies the administration’s. Putting aside international “reset buttons,” “red lines,” troop withdrawals, and disarmament agreements, the administration’s entire hoped-for legacy, on matters from immigration DREAM acts to reversing the ocean tides, consists of grand but legally unauthorized initiatives. And we have it on high authority that it doesn’t matter. The Affordable Care Act, President Obama declared this week, is “woven into the fabric of America” and of “how we care for one another.” To demand some legal authority for all the knitting is worse than pointless; it is “deeply cynical.”

Trust the President on the subject of cynicism: he’s the expert.

Reader Discussion

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on June 11, 2015 at 13:59:42 pm

(What is it with WordPress that I must substitute my name to get posted?)

Your piece here again reminds me that so much of what we normally construe to be important in law and society, i.e., “Is it constitutional”, is SCOTUS actually Supreme, etc., is quite simply beside the point (except, of course, for Constitutional Law professors, who, no doubt, garner both reward and recognition from the pursuit of these questions).
So much of what we debate is a discussion at the margins of our constitutional framework / understanding. SSM, as an example, occupies considerable space in blogs, media, etc. We consume ourselves finding both supporting and countering arguments – for something that is, at best, an afterthought, an apostrophe added to the text of that document which purportedly secures our liberty – while all around us other actors are taking / making determinations and employing or creating new mechanisms / rules that are far more insidious and destructive of our liberties than some Judge deciding that two (or more, probably next on the agenda) beings of the same gender may marry.
At both the Federal and State level (even County levels), other actors are binding us with rules both inane and destructive and covering everything from labels on food packaging to what size roofing nails I must use on my patio awning (for the mundane); as for the more destructive components of this new rulemaking / arbitration / decision making, look to Administrative Agencies proposals / rules, etc. on Clean Air, Water, etc. and the effect it has on your property rights (and eventually, perhaps, on your movement(s) as EPA begins to formulate clean air requirements for airlines).
Would it interest anyone to know that in my home state, the local County EPA equivalent has DETERMINED that there is a need to provide access to the “states rivers and waters” for the general public and as a consequence of this determination, certain persons seeking to improve their property MUST YIELD a “public access” easement of their waterfront (a 25 ft. deep swath of lakefront) in order to achieve this notable objective. All this absent some outpouring of public sentiment demanding “access” to the State’s rivers and waterways AND when the achievement of such access may (will) require the trespass upon a third person’s property for such access (mine).
SSM, kiddies, is at the margins – as is so much else of current commentary. What matters presently is what your County, State agencies and Attorneys General are doing that is destructive of our liberties.
What rules are they making? what settlements are they making? – and what effect will these decisions have upon the citizenry?
When a “band of (legal) brothers decide that some previously unwished or unrealized (able) objective is in the “public good” there is no telling just how much mischief can be achieved.

Now off to fight some local windmills:


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on June 11, 2015 at 21:29:11 pm


Now that's what I'm talking about, brother!!!!!!

$150 for a permit for little girls to sell lemonade - and we are debating / babbling on about who is Supreme?
It has all passed us by - the guvmint is SUPREME!!!!!

gabe as bongo

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Image of bongo
on June 11, 2015 at 21:52:47 pm

And here is another one, kiddies!


I suppose the "expertise", immense as it is, resident in the labyrinthian cubicles of the Federal guvmint, will be sufficient to make all of our "diversity" shortcomings disappear based upon the aspirational goals contained in these two statements - not to mention the added benefit of, perhaps, diluting conservative influence in certain districts.

"Gosar told The Hill that the rule gives HUD power over zoning laws, allowing the agency to declare what types of homes may be built where and who gets to live in them.

In addition, it could also hurt property values and add more minorities to communities that lean Republican, Gosar said.

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Image of bongo
on June 11, 2015 at 23:56:00 pm

Sounds like a good case for a preliminary injunction once they issue the final rule.

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Devin Watkins

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