Politico
By Josh Gerstein
February 10, 2016
President
Barack Obama's drive to cement his legacy in the waning years of his
administration has run into a formidable obstacle: The Supreme Court.
The
court's surprise move on Tuesday against Obama's effort to control
climate change poses a more serious threat to his legacy than any other
legal challenge before the
justices, including the pending case over his efforts to overhaul U.S.
immigration policy.
While
the immigration challenge is likely to be resolved definitively by June
and could permit Obama to launch a dramatic expansion of protections
and benefits for millions
of illegal immigrants, the administration's attempt to regulate carbon
emissions by power plants is now virtually certain to be officially
suspended and in a state of legal limbo by the time Obama leaves office
next January.
The
fact that the court's 5-4 decision to halt implementation of the
regulations came in a ruling that attracted the vote of swing justice
Anthony Kennedy was an ominous
sign for the administration and environmentalists, experts said.
In
2007, Kennedy authored the court's 5-4 decision requiring the
Environmental Protection Agency to regulate carbon dioxide as a
pollutant. Now, he seems skeptical that
the means the Obama Administration chose to do that was a legally valid
one.
"You
have to be worrying, [in the White House] that you’ve lost Justice
Kennedy at this point," said Brendan Collins, an environmental law
attorney with the firm of Ballard
Spahr.
"The
lines are pretty clearly drawn," added University of Richmond law
professor Carl Tobias, noting that all four of the court's Democratic
appointees dissented from
the court's action.
Another
reason for concern at the White House: the stay the justices issued was
so unusual that many lawyers were nearly certain it would be denied.
Attorneys inside and
outside the administration said they were aware of no other case where
the Supreme Court blocked enforcement of a regulation that had yet to be
ruled on on the merits by a lower court.
"That's
pretty shocking stuff. It is without any exaggeration and in the very
literal sense of the term, unprecedented," Collins said.
In
a similarly unusual nighttime conference call with reporters Tuesday,
the White House sought to downplay the development as a "temporary
procedural determination,"
but the caustic tone toward the court from some of the White House's
closest allies betrayed a deeper worry about the justices' action.
"I
deeply deplore what I believe will ultimately come to be seen as an
infamous political action by the five Republican appointees on the
Supreme Court,” Sen. Sheldon
Whitehouse (D-RI.) said in a statement late Tuesday.
Senate
Minority Leader Harry Reid (D-Nev.) expressed his “amazement” at the
court’s move and called it “especially stunning,” while predicting that
the administration’s
rules will ultimately prevail.
“This
short-sighted decision by the Court’s five conservative justices is an
unfortunate setback. It unnecessarily puts into question the major part
of our country’s efforts
to address climate change and protect our environment,” Reid said in a
speech on the Senate floor Wednesday.
House
Speaker Paul Ryan hailed the court's action as a step toward
dismantling Obama's climate policy and thwarting its impact on coal
country.
"This
ruling is a victory for the American people and our economy," Ryan
said. "President Obama’s attempt to remake the country's entire energy
sector to further his own
climate agenda is more than costly, it’s unlawful. This rule should be
struck down permanently before coal country is destroyed completely, and
American consumers are consigned to higher energy prices."
White
House spokesman Eric Schultz pushed back Wednesday against suggestions
that the administration's Clean Power rule is in trouble and officials
may need a Plan B to
make the reductions in emissions necessary to satisfy the international
agreement signed by Obama in Paris last year.
"I’m
familiar with Plan B questions because they were often asked to us in
the context of the Supreme Court ruling on the Affordable Care Act. The
Supreme Court upheld
the Affordable Care Act several times now. So, we remain confident that
when this [climate rule] is given its day in court, it’s going to be
upheld on the merits," Schultz said.
In
2012, the Supreme Court upheld the individual mandate in Obamacare,
5-4, and last year it voted 6-3 to uphold the authority of the federal
government to issue subsidies
for health insurance nationwide. However, the justices voted 7-2 to
reject another feature of Obamacare: an attempt to coerce states into
expanding Medicaid by taking away all Medicaid funding if they did not.
The high court also upheld the right of closely
held for-profit companies to opt out of some Obamacare coverage on
religious grounds.
A
senior administration official who spoke to reporters on condition of
anonymity Tuesday night acknowledged that the regulations for coal-fired
electric plants at issue
in the Supreme Court case are "the signature initiative of the
administration."
However,
that official and others stressed that the power plant regulations in
play in the case are just a part of the administration's broader set of
policies designed
to reduce U.S. carbon emissions and put the country on a path to
achieving targets agreed to by Obama at a global climate conference in
Paris in December.
"The
Clean Power Plan is only one part of this administration’s initiatives
to transform the energy economy in our country," Schultz said. "We’re
going to continue to
take aggressive steps to reduce greenhouse gas emissions. For example,
that includes pursuing a broad range of policies to reduce emissions
from cars and trucks from the oil and gas sector, aircraft, and increase
energy standards."
Administration
officials also noted that the power plant rules were intended to roll
out over a period of years, so the delay resulting from the high court's
stay would
have a limited impact. And they argued that tax credits Congress
re-authorized in the recent spending bill would help achieve the
administration's climate goals.
"It
is our estimation that the inclusion of those tax credits is going to
have more impact over the short term than the Clean Power Plan," Schultz
said.
Some
experts also said a future president could find other ways to target
the utility industry even if the Obama EPA plan is rejected. But others
stressed it would be
hard for the administration to make major reductions in greenhouse gas
emissions without going after power plants in some fashion.
"The
problem for the administration is the electric power sector produces
something on the order of 40 percent of emissions.....The return on
government regulation [of
other sectors] is nowhere near as potent as regulation of the electric
sector," Collins said.
The
administration's Clean Power plan is currently before the D.C. Circuit,
which is expected to hold arguments on the issue in June and to rule in
two or three months
thereafter. But the result of the stay the justices granted Tuesday is
that even if the administration initially prevails there, utility and
fossil fuel interests could drag out consideration by asking the full
bench of the D.C. Circuit to rehear the case.
That would likely push final appeals court action until the end of this
year or even into 2017.
"The
administration has always known that implementation of all of this is
going to be long out of its hands [but] before, at least [Obama] could
have gone to bed with
a win in the D.C. Circuit that wasn't tainted by this brooding coda at
the Supreme Court," Collins said.
"I just don't see how anything can happen during his administration," Tobias added.
By
contrast, if the court greenlights Obama's immigration plan in June, it
could be up and running within a couple of months. Some applicants
might have been turned off
by the year-plus delay during the legal fight, but most are expected to
apply anyway in order to try to get work permits before Obama leaves
office. The hiatus ordered by lower courts could wind up as little more
than an unpleasant memory for Obama and his
aides.
One
side effect of the partisan split in the court's stay order on the
climate rules Tuesday is that it could provide fodder for the
presidential contest. As the election
approaches in November, environmental groups and Democrats will be able
to argue that the authority for environmental regulation is hanging by
the slenderest of margins in the Supreme Court and that Americans need a
president whose nominees will endorse such
rules.
The
differences between the Democratic and Republican presidential field on
climate regulation issues already offer voters a stark choice on the
issue, but the specter
of a looming Supreme Court might provide an extra impetus for some
voters.
Climate
change activist and donor Tom Steyer previewed that argument Tuesday
night as he reacted to the justices' unexpected move, saying: "Our next
president will have
the responsibility to select Supreme Court justices, and today’s
decision reminds us how critical these selections will be to keeping our
families healthy, safe, and economically secure."
For more information, go to: www.beverlyhillsimmigrationlaw.com
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