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."
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