March 29 2016
The United States Constitution makes no mention of a vast administrative state like the one that exists today. Yet agencies promulgate regulations that carry the force of law, engage in court-type proceedings to determine the rights of individuals and businesses, and enforce their own determinations as to regulatory compliance. Two constitutional principles place a check on the authority of administrative agencies. First, under Article I of the United States Constitution, Congress must “make the law.” As a result, in order for an agency to promulgate regulations, Congress must have delegated such authority. Second, under Article III, it is the province of the judiciary to say what the law is. Thus, parties affected by agency regulations must generally be allowed to challenge those regulations in federal court.
The Environmental Protection Agency (“EPA”) has been known to push the envelope on both fronts, and never more than under the current Administration.
On October 23, 2015, the EPA released its Clean Power Plan (“CPP”). This plan, pushed out by unelected administrators in the waning hours of an administration, is ambitious. The Administration’s stated goal is to “transfor[m] … the domestic energy industry.”
Meanwhile, President Obama unabashedly touts the program as “the single most important step America has ever taken in the fight against global climate change.” And yet, one searches the United States Code in vain for any statutory authorization from Congress for the EPA to “transform” the domestic energy industry in all fifty states. Further, the draconian deadlines provided by the Act all but ensure that states must take expensive steps to comply with the Clean Power Plan before the legality of such plan has been decided by federal courts.
As a result, nearly thirty states and numerous industry groups filed suit challenging the CPP in federal court. They also asked the United States Supreme Court to stay implementation of the CPP, and thus preserve the status quo, until the federal courts have determined whether the regulations are a lawful exercise of agency authority.
On February 9, 2016, the Supreme Court took the highly unusual step of issuing a stay order, halting implementation of the CPP until the legality of the EPA regulations can be resolved. Under the standards governing stay requests, five justices found it likely that the states would succeed on the merits of their challenge to the CPP and also that the states would suffer irreparable harm if implementation if the CPP was not immediately stopped. The Supreme Court’s stay order thus signals that the Court has significant concerns over the legality of the CPP, and it guarantees that the CPP will be put on ice until the Court has had a chance to review it.
First, the parties will brief and argue the case before the D.C. Circuit with an opinion expected sometime this summer. It is likely that the losing side with seek review in the Supreme Court. Since only four votes are required to grant certiorari—one less than the five required to grant a stay—there is a good chance that the Supreme Court will decide to review the case on the merits regardless of the outcome in the D.C. Circuit. The death of Justice Scalia, however, adds an additional wrinkle. Justice Scalia was one of the five justices who voted to grant the stay application and thus found merit to the challengers’ position. That leaves four justices who were sufficiently troubled by the Clean Power Plan to grant a stay. If the Court hears the case before a new justice is confirmed, and if the justice’s merits votes mirror their stay votes, the Court may split 4-4. In that case, the D.C. Circuit’s ruling on the legality of the CPP will stand. Thus, the briefing and argument to take place in that court this spring has become all the more important.
This legal brief sets out the details of the CPP, its statutory background, and the main legal issues regarding the EPA’s authority to issue the plan.