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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.

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