Who were the big winners last night? The list certainly Donald Trump and Bernie Sanders and arguably John Kasich, but 27 states may have won a bigger battle. In a dramatic decision overshadowed by the New Hampshire primary last night, the Supreme Court blocked the Obama administration’s attempts to impose drastic new regulations on power plants — at least until the courts hear challenges to the EPA’s Clean Power Plan:
A divided Supreme Court on Tuesday abruptly halted President Obama’s controversial new power plant regulations, dealing a blow to the administration’s sweeping plan to address global warming.
In a 5-4 decision, the court halted enforcement of the plan until after legal challenges are resolved.
The surprising move is a victory for the coalition of 27 mostly Republican-led states and industry opponents that call the regulations “an unprecedented power grab.”
By temporarily freezing the rule the high court’s order signals that opponents have made a strong argument against the plan. A federal appeals court last month refused to put it on hold.
The order itself was terse, and unusual. After having received the motion for a temporary stay, Chief Justice John Roberts referred it to the entire court rather than rule on it himself. The court split along its usual ideological axis as one might expect, but the intervention in the case at all is rather surprising. While the stay is temporary, the court appears to have agreed with the states that the CPP causes irreparable harm, and that they have at least a fair chance of winning their case if and when it comes to the Supreme Court.
What consequences will this have? In the shorter term, the question will be whether the DC circuit court takes the hint. The 5-4 decision on the stay isn’t a binding vote on the merits, but it seems pretty clear that the high court has a distinctly skeptical view of CPP. The appeals court may still decide that CPP passes constitutional muster, but it might look to this stay as a signal about the eventual outcome of the case and reorient their perspective accordingly. At the very least, the jurists hearing the case know that they will have to pitch their arguments in a manner that can move one of the five Supreme Court justices from skepticism to support — most likely Anthony Kennedy, as is usually the case.
More importantly, the stay makes it all but certain that implementation of the CPP will not take place under Barack Obama. The challenge to the EPA is in process at the DC Circuit, which had declined to put a stay in place. The appeals court will likely take a few months to work on the case, which means the Supreme Court almost certainly won’t get to it in this term. It could easily take until mid-2017 for the final decision to come down on CPP, by which time Obama will have been out of office for months — and a Republican president could stop CPP and render the case moot well before then.
Barack Obama may have learned one big lesson the hard way. Presidents who want to build legacies through executive orders and regulatory adventurism rather than Congressional engagement cannot wait until their final year to flex those muscles.
Addendum: What about the other 23 states? The statement from the American Energy Alliance warns other states about adopting CPP early in light of this stay:
“This is a significant victory for the American people and a strong rebuke of the Obama administration’s heavy-handed regulatory agenda. The Supreme Court should be applauded for standing up for American families after the D.C. Circuit failed to do so.
“The Supreme Court’s decision sends a clear signal to state leaders that they must avoid making any binding commitments until the legal process plays out, especially because EPA’s regulations are looking increasingly legally dubious. States should continue to pursue actions, such as legislation, to stop utilities from continuing their trend of shutting down low-cost, reliable power plants. A ‘do no harm’ approach, meaning avoiding binding commitments, is the best way to protect the American people from higher electricity costs. Now more than ever, states should follow this ‘do no harm’ approach.
“It is far too rare for the courts or Congress to back the little guy against red tape from Washington bureaucrats. Fortunately, that’s exactly what happened today.”
Perhaps if Washington bureaucrats had taken a “do no harm” approach, we wouldn’t be in this situation.