Source: Daily Kos
The Supreme Court’s unexpected suspension of the EPA’s Clean Power Plan, on February 9, by a 5 to 4 party line vote has far deeper potential impacts than the delay of implementation of an EPA regulation. The unprecedented act of suspending an administrative rule before it was heard by any court may indicate that the court was considering a precedent shattering decision, of the magnitude of the Citizens United decision, on the scope of federal regulatory authority. The ideology expressed in the lawsuit by the 29 red states suing to stop the EPA’s plan, supported by the Republicans on the Supreme Court, is so extreme that it could cripple the federal government’s ability to regulate anything at all. This extreme ideology, however, is congruent with ideas about the limits of federal regulatory authority expressed by Justice Scalia in 2014.
The death of Justice Scalia will not affect the hold on implementing the Clean Power Plan but it puts the federal government’s ability to implement and enforce regulations at the center of the 2016 elections. Scalia’s death gives Democrats a chance to end longstanding Republican plans to use the Supreme court to strip the federal government of the power to enforce environmental regulations needed to stop catastrophic changes in the atmosphere and the ocean.
The election of a Republican president would not only run out the clock on any chance to avoid severe impacts from climate change but would also lead to a Republican dominated court that would likely strip, in the name of states’ rights, the federal government’s ability to enforce many environmental and health and safety regulations. The election of a Republican president would likely lead to irreparable harm to life on earth and minority communities like Flint, Michigan would be the first affected. With federal regulatory authority stripped, extremist Republican governors, like Governor Snyder of Michigan, could act with impunity on behalf of their corporate clients.
The scope of the suit against the Clean Power Plan is breathtaking in its extremism. Ian Millhiser of Think Progress Justice wrote about the consequences of the Republicans winning in his must-read, in-depth legal analysis:
If we do not prove able to this task, the consequences will be catastrophic. In the relatively short term, the Environmental Protection Agency predicts that the Clean Power Plan will “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.”
In the longer term, major cities could be swallowed by the ocean. Displaced residents will trigger a worldwide refugee crisis. Entire regions of the United States could be converted into a permanent Dust Bowl. The sheer magnitude of the catastrophe will rival any tragedy that has faced humanity since the Book of Genesis.
However, the suit has no mention what-so-ever of the catastrophic global costs of climate change. That’s just the beginning. It gets worse. The suit promotes an extreme ideology of state’s rights that has historic ties to the Confederacy, which could render the federal government impotent. In mandating the suspension of the Clean Power Plan the court ignored the thousands of lives that would be saved from the directly toxic effects of burning fossil fuels, in addition to the catastrophic indirect costs of climate change, in deference to the 29 states’ claims of irreparable harm. If the Court can ignore the direct deaths of thousands from pollution and the potential destruction of civilization as we know it from climate change, what federal regulation will be allowed to stand?
The final section of Millhiser’s analysis should shock anyone who says they won’t vote for Hillary Clinton or Bernie Sanders, for whatever reason, back to their senses. Before Scalia died the Court may very well have been preparing to make the worst Supreme Court decision since Dred Scott.
Returning America to the Dark Ages
Yet, despite the aggressiveness of the challengers’ arguments against executive power, these arguments aren’t even the most ambitious portion of their case against the Clean Power Plan. To the contrary, the states challenging the EPA offer a theory of states’ rights that, while difficult to parse, appears to press for limits on federal power that would call into question why we should even bother having a federal government in the first place.
The Clean Power Plan offers states a choice. States may either elect to devise their own plan to meet emissions reduction standards set by the EPA, or they can do nothing and the federal government will implement such a plan on its own.
The states challenging the Clean Power Plan raise several states’ rights based objections to this arrangement, most of which are unlikely to garner much support on the Court. As the Justice Department notes in its brief, the Constitution “permit[s] congressional regulation of activities causing air or water pollution . . . that may have effects in more than one State.”
Since the federal government could simply choose to regulate greenhouse emissions without any input from the states whatsoever, it is difficult to understand how the Clean Power Plan becomes more offensive to states’ rights because it gives states the option to participate in the process.
The challengers’ most aggressive argument, however, challenges the federal government’s power to enforce regulations that may impose some cost on the states down the road:
If EPA effectively mandates through a Federal Plan the retirement of coal-fired and fossil fuel-fired plants or reductions in their utilization (including by mandating the purchase of exorbitantly expensive emissions allowances), state utility and electricity regulators will have to respond in the same way as if the State itself had ordered the retirements.
Likewise, if EPA orders through a Federal Plan that power-plant owners construct new capacity, state utility and electricity regulators will have to plan for and oversee its construction and integration into the electric system as if the State itself had issued the order.
If federal regulations cause someone to built a new power plant, state regulators will want to regulate that plant. And that, somehow, makes the federal regulation an incursion on states’ rights.
Under the challengers’ theory, military bases are unconstitutional.
The problem with this argument is that, if taken seriously, it would invalidate nearly any federal program. Suppose, for example, that the federal government decided to implement a health insurance program for the elderly (we’ll call it “Medicare”). Such a program would inject new money into the health care system, which would cause new hospitals and other health care facilities to be built.
These new facilities, moreover, would undoubtedly be regulated by existing state rules and state agencies — they may, for example, need to apply for permits and licenses from state-paid employees. But it’s ludicrous to suggest that, because Medicare sets in motion a chain of events that eventually imposes costs on a state, Medicare is unconstitutional.
Similarly, suppose that the federal government decided to construct a army base within a state. The base would house soldiers, who would patronize state-regulated businesses, drive on state-maintained roads and send their children to state-run schools.
Over time, those roads would deteriorate faster and the state may even need to build new roads to accommodate the increased traffic. Meanwhile, the new students would increase the cost of public education. Thus, under the challengers’ theory, military bases are unconstitutional.
The challenge to the Clean Power Plan, in other words, is more than just a threat to the Obama administration’s efforts to ward off a global catastrophe. It is also one of the most ambitious attempts to rethink the role of government to reach the Supreme Court in years. And five justices thought this challenge had enough merit that they halted the Clean Power Plan before any lower court had even considered those rules.
That, in and of itself, may be the most remarkable thing about this case. As the Justice Department explains in its brief, “the danger of premature intervention in lower-court proceedings is particularly acute here, where no court has yet analyzed the merits of applicants’ claims. Applicants identify no case, and we are aware of none, in which the Court has granted a stay of an administrative rule before that rule has been reviewed by any court.”