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Clean Power Plan Litigation: A Giant Ball of Uncertainties

Prognosticating judicial outcomes is a foolish endeavor in general, but trying to predict the fate of the Clean Power Plan in Article III courts is downright stupid.

Before I get to why judicial review of the Clean Power Plan is the most uncertain litigation I’ve ever experienced, allow me to first lend a little background.

  • During his 2012 reelection campaign, Obama ducked climate change because it is political poison, and he didn’t want to alienate voters.
  • After winning a second term and no longer facing electoral accountability, Obama made climate change his second term priority. Evidently, he’s keen on securing a green legacy.
  • In August 2015, the EPA finalized Obama’s marquee climate policy, the Clean Power Plan, which is “backstopped” by a federally-administered cap-and-trade energy rationing scheme.
  • EPA’s cap-and-trade irked Congress, because lawmakers already had rejected a cap-and-trade energy rationing scheme. During the winter of 2015, bipartisan majorities in both chambers passed a resolution to repeal the Clean Power Plan, but Obama vetoed the measure.
  • In the meantime, 28 states sued to stop the rule, along with scores of businesses and non-profits (including CEI).
  • In February 2016, the Supreme Court took the unprecedented step of pausing the Clean Power Plan until judicial review runs its course.
  • The legal fight over the Clean Power Plan currently resides in the U.S. Court of Appeals for the D.C. Circuit. In normal course, a three-judge panel of the D.C. Circuit Court would conduct judicial review, and the losing party could then petition to have the case reconsidered by all 11 judges on the court. However, given the importance of the Clean Power Plan and also its controversial history, the entire D.C. Circuit Court agreed to hear the case (save for two judges who recused themselves). Oral arguments will occur on the 27th.

In sum, Obama’s Clean Power Plan enjoys zero political legitimacy, and, in the time since the rule went final, it has been: 1) voted down by bipartisan majorities in Congress; 2) checked by the Supreme Court; and 3) challenged by a record number of states.

Normally, there’s only a tiny chance that the Supreme Court would hear a given case. Yet this rule of thumb is inapplicable to the litigation over the Clean Power Plan, because the Supreme Court’s unprecedented stay of the rule is a strong indication that the Court intends to address this controversy. Needless to say, the highly unusual near-certainty that the Supreme Court will take on the Clean Power Plan looms over the current proceedings before the D.C. Circuit Court.

Of course, the Supreme Court is unsettled in the wake of Scalia’s death. It is, moreover, no secret that the next President will have a major say in the composition of the court, which, in turn, would have a major impact on the Court’s review of the Clean Power Plan. For that matter, the next President will control the reins of litigation. He or she could start the process of shelving or overturning the rule, which could render the lawsuit moot. Alternatively, the next President could operate behind the scenes to court a loss by depriving the Justice Department of resources in defending the rule (by, say, giving priority to different cases).

The upshot is that the case is captive to current events. No matter what the D.C. Circuit decides, this controversy is likely to make it to the Supreme Court. And the makeup of the Supreme Court is a function of who wins the White House. For that matter, the next president could have a huge impact on the litigation, independent of how he or she decides to shape the Supreme Court. Thus, the whole imbroglio is a giant ball of uncertainties.