by Simon Lazarus, Senior Counsel, Constitutional Accountability Center
*This post originally appeared on Balkinization.
The Challenge to the EPA’s Clean Power Plan Regulations
Obama’s third top domestic priority, EPA’s Clean Power Plan regulations, proposed in preliminary form in June 2014—which attempt to drastically cut carbon pollution from power plants—is also under attack in the courts. Unlike Texas Governor Abbott’s and House Speaker Boehner’s suits, challenges to the final version of these rules, expected imminently, will not be dismissible as hoked up political maneuvers. Coal and other energy industries, and coal-producing state governments will allege indisputably substantial impacts from the regulations; moreover, specific Clean Air Act provisions authorize parties affected by such rules to seek judicial review.
But, on the merits of EPA’s CAA authority to adopt the sweeping CPP rules, both conservative and progressive commentators have suggested that King v. Burwell could indeed be the game-changer that Professor Gluck noted, not necessarily to the Obama Administration’s advantage. In the words of environmentalist Harvard law professor Jodi Freeman, potential new danger for the CPP arises from Chief Justice Roberts’ “striking and significant departure” in ruling that, henceforth, courts must, on their own, interpret ambiguous statutory provisions, in cases where, as noted above, “questions of extraordinary political and economic significance” are at stake – rather than defer to an agency’s “reasonable” or “permissible” reading.
EPA rests its claim to promulgate the CPP rules on its resolution of a mind-numbing dispute over an intricate provision of the Clean Air Act, readily susceptible to being labeled, “ambiguous.” Due to what one prominent environmental law expert has derided as a “glitch” in the 1990 amendments to the Clean Air Act, Congress included two versions of the same CAA subsection (§111(d)); one version pretty clearly provides authority for the CPP rules, while the language of the second, read literally, can be interpreted not to do so. EPA claims the first version is the correct one.