On Tuesday, September 27, the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments over EPA’s massive Clean Power Plan.
The hearing will be unusual for several reasons--it will be a rare initial en banc hearing, meaning it will take place before nine judges instead of the typical three-judge panel.
The case already has a short but unique Supreme Court history; in February the high court, by a 5-4 vote, enjoined the plan from taking effect until the court challenges were finished.
That unexpected ruling was followed four days later by an even greater shock--the death of Justice Antonin Scalia, one of the justices who voted for the stay.
The massive scope of EPA’s plan is the real showstopper. The plan aims to reduce greenhouse gas emissions from existing power plants by nearly a third over the next 14 years. It would be the most expensive regulation ever imposed on the energy industry, destroying jobs, pushing manufacturing companies out of the U.S., and raising consumer costs.
The Supreme Court’s stay is still in effect, but gone is the impression it created, that the plan would receive a hostile reception once it reached the high court.
But it’s the massive scope of EPA’s plan which is the real showstopper. The plan aims to reduce greenhouse gas emissions from existing power plants by nearly a third over the next 14 years. It would be the most expensive regulation ever imposed on the energy industry, destroying jobs, pushing manufacturing companies out of the U.S., and raising consumer costs. EPA claims the plan is necessary to save the planet. Critics (like us) argue that its environmental benefits would be marginal at best, and they would be more than offset by a possibly fatal body blow to the economy.
The legal issues facing the appeals court on Sept. 27 involve a complex statute, the Clean Air Act, as well as fundamental issues of federalism and administrative law. At heart, though, EPA’s rule is rooted in public relations, not law.
EPA’s head, Gina McCarthy, has publicly stated that the alleged environmental benefits of the plan were not its real rationale.
At a March 22 congressional hearing, one congressman stated: “I don’t understand--if it doesn’t have an impact on climate change around the world, why are we subjecting our hard working taxpayers and men and women in the coal fields to something that has no benefit?”
McCarthy’s answer: “We see it as having had enormous benefit in showing sort of domestic leadership as well as garnering support around the country for the agreement we reached in Paris.”
But demonstrating leadership is not the law’s goal; the underlying statute, after all, is the Clean Air Act, not the Clean Air Politics Act.
It’s also an incredibly expensive goal, costing the country tens of billions of dollars annually. And it’s at this point that, on the issue of costs and benefits, EPA launches into its song-and-dance routine: it didn’t have to do a cost-benefit analysis, says EPA, but it did one, but it’s not the one it used to justify what it did, and the numbers are fine anyway.
In fact, the numbers aren’t fine. In ruling last year in another Clean Air Act case, Michigan v. EPA, the Supreme Court noted the irrationality of imposing “billions of dollars in economic costs in return for a few dollars” of benefits.
The Clean Power Plan’s alleged benefits, moreover, won’t even be for the U.S.; they’re global benefits, even though they’re paid for by U.S. consumers. This is contrary to the Clean Air Act’s focus on protecting “the Nation’s air resources” for “its population.”
These are far from the only problems posed by the Clean Power Plan. It also involves a drastic centralization of federal power over state electricity markets, and a bait-and-switch maneuver between the rule that EPA first proposed for public comment and the rule it finally issued.
If you think all this is nit-picking about a plan essential to the planet’s survival, remember Gina McCarthy’s words--it’s not about the planet, it’s about “showing leadership.”
We’re not sure how many states Gina carried in her last election, but thankfully those aren’t the votes that will matter now.
Boyden Gray served as White House counsel under President George H.W. Bush and as U.S. ambassador to the European Union under President George W. Bush.
Sam Kazman is general counsel of the Competitive Enterprise Institute, a free-market organization in Washington, D.C.